Re: Court challenge to AOL junk-mail blocks
-----BEGIN PGP SIGNED MESSAGE----- At 12:27 PM 9/7/96 -0700, Declan McCullagh wrote:
If AOL wants to stop spammers, let them. They have every right to do so as long as their agreement with their customers permits it. It's a matter of contract law between AOL and its customers and should not involve the spammers and a lawsuit brought by the spammers.
It seems as though the judge was snookered by the spammers' claim of U.S. Mail-like service, free speech, blah. The right to free speech does extend to corporations; in that way, it includes the right *not* to speak.
Declan raises a good point. But I'm guessing it's a bit more complex than that. CyberPromo and AOL lawyers tell me the court slapped down AOL simply to "keep the status quo." Both sides used those very words, in fact. What's more, CyberPromo talks a good game on the First Amendment, but used computer fraud and unfair competition statutes - not the Bill of Rights - in its original filing against AOL. So what's going on? It seems Weiner is _very_ aware that this case deals with things never before argued in court. No one has really sorted out just how much e-mail - if any - an ISP is obligated to carry against its wishes. What Weiner decides this fall may not set the kind of precendent that the case of the Pentagon Papers did, but will be important for a while at least. Will -----BEGIN PGP SIGNATURE----- Version: 2.6.2 iQEVAwUBMjIIw0cByjT5n+LZAQFNWgf/Xb+yG9JDVZ6MN1Hz/K4IUCXL8hSgjeG3 +Ih+aXiod/vVAHXCJmktvBJFWWAJjpFjW/0WQljvsMULxXYpdXAYFDh4kiZZg4A3 7xkjCsT+Kpi8lDCRmFPciQfvoLyiEJxr8hI2l2qucE0THV0spysTKpgYueggLZI6 no5mC47ZGusfL9jWb7qrnbqjO1h+0mVZYgr0GRY8MVvyMsJGgylEDaiCh0KSaI1V TqEfTF+kcbzqtht0yG/M+QmCRertH4s1y9IWllWvJLMbAfwgFCxgGtamWoyXiHye keXAGLK0r2u8vTfwK5rJ91ZR774CGkZHulNi3wx53pZaFyYPJtYizA== =KS50 -----END PGP SIGNATURE-----
It seems as though the judge was snookered by the spammers' claim of U.S. Mail-like service, free speech, blah. The right to free speech does extend to corporations; in that way, it includes the right *not* to speak.
Declan raises a good point. But I'm guessing it's a bit more complex than that. CyberPromo and AOL lawyers tell me the court slapped down AOL simply to "keep the status quo." Both sides used those very words, in fact.
What's more, CyberPromo talks a good game on the First Amendment, but used computer fraud and unfair competition statutes - not the Bill of Rights - in its original filing against AOL. So what's going on?
It may be because until the 14th amendment incorporated the BoR against the states, only individuals enjoyed its protections -- the Slaughterhouse cases extended the BoR to corporations. Or it may just be that CyberPromo knew they probably didn't have a leg to stand on when it came to the BoR, and decided to try a safer tack.
It seems Weiner is _very_ aware that this case deals with things never before argued in court. No one has really sorted out just how much e-mail - if any - an ISP is obligated to carry against its wishes. What Weiner decides this fall may not set the kind of precendent that the case of the Pentagon Papers did, but will be important for a while at least.
Agreed. Regardless of the outcome, this is a case to watch. -- http://yakko.cs.wmich.edu/~frogfarm ...for the best in unapproved information Hey, Bill Clinton: You suck, and those boys died! I hope you die! I feel a groove comin' on $ Freedom...yeah, right.
I will of course defer to Will's grasp of the facts, since I haven't been following this story or interviewing the principals. (Though I have read the court's opinion and Reid's article in the Philly Inquirer.) The judge did mention "status quo" in his opinion. I would hope that "status quo" would mean the ability of ISPs to offer and enforce whatever contracts they want -- including banning incoming spam -- without the intervention of the government. Unless, of course, the ISP breaks the contract, but in that case the plaintiffs should be the customers, not the spammer. Contrary to what CyberPromo has been telling the press, Internet email is not the U.S. Postal Service. In fact, the USPS has a rather horrific monopoly that has given rise to Comstockery in the last century, the Robert Thomas case more recently, laws giving the USPS the sole right to insert mail in your mailbox, and las banning private enterprise from delivering "non-urgent" mail. That kind of bureaucratic monopolistic foolishness is not what the Net needs. -Declan On Sat, 7 Sep 1996, Will Rodger wrote:
At 12:27 PM 9/7/96 -0700, Declan McCullagh wrote:
If AOL wants to stop spammers, let them. They have every right to do so as long as their agreement with their customers permits it. It's a matter of contract law between AOL and its customers and should not involve the spammers and a lawsuit brought by the spammers.
It seems as though the judge was snookered by the spammers' claim of U.S. Mail-like service, free speech, blah. The right to free speech does extend to corporations; in that way, it includes the right *not* to speak.
Declan raises a good point. But I'm guessing it's a bit more complex than that. CyberPromo and AOL lawyers tell me the court slapped down AOL simply to "keep the status quo." Both sides used those very words, in fact.
What's more, CyberPromo talks a good game on the First Amendment, but used computer fraud and unfair competition statutes - not the Bill of Rights - in its original filing against AOL. So what's going on?
It seems Weiner is _very_ aware that this case deals with things never before argued in court. No one has really sorted out just how much e-mail - if any - an ISP is obligated to carry against its wishes. What Weiner decides this fall may not set the kind of precendent that the case of the Pentagon Papers did, but will be important for a while at least.
Will
// declan@eff.org // I do not represent the EFF // declan@well.com //
The judge did mention "status quo" in his opinion. I would hope that "status quo" would mean the ability of ISPs to offer and enforce whatever contracts they want -- including banning incoming spam -- without the intervention of the government. Unless, of course, the ISP breaks the contract, but in that case the plaintiffs should be the customers, not the spammer.
Aren't spammers customers, by definition? If so, they have just as much right to bring suit as any other customer. Less moral justification, yes, but an equal standing in the law's eyes. -- I let go of the law, and people become honest / I let go of economics, and people become prosperous / I let go of religion, and people become serene / I let go of all desire for the common good, and the good becomes common as grass. .oOo. [Tao Te Ching, Chapter 57, Stephen Mitchell translation]
No. A customer buys service from AOL and in doing so signs a contract with the company. AOL and the customer each has certain rights and obligations spelled out in the contract. I confess I don't know if AOL's contract allows them to block spam. But in any case, spammers are not customers. -Declan CONTRACT - LEGAL DEFINITION A contract, expressed or implied, is binding when six elements are present: 1. Parties involved have the capacity to enter into a contract, i.e. mental capacity and requisite age, or the authority to obligate the institution. 2. The contract must be based on an offer. 3. The offer must be accepted (acceptance by a written or oral promise - expressed acceptance, or by performance of the task in question implied acceptance. 4. The offer and acceptance must be mutual. The key here is proof of a "meeting of the minds" on terms and nature of the promise. 5. There must be performance in order for one or both parties to be bound by the mutually agreed terms of the contract. (An institution would not be obligated to pay until the contractor performed services agreed upon). 6. The contract must be for a legal purpose or it will not be binding. On Sun, 8 Sep 1996, Damaged Justice wrote:
The judge did mention "status quo" in his opinion. I would hope that "status quo" would mean the ability of ISPs to offer and enforce whatever contracts they want -- including banning incoming spam -- without the intervention of the government. Unless, of course, the ISP breaks the contract, but in that case the plaintiffs should be the customers, not the spammer.
Aren't spammers customers, by definition? If so, they have just as much right to bring suit as any other customer. Less moral justification, yes, but an equal standing in the law's eyes.
-- I let go of the law, and people become honest / I let go of economics, and people become prosperous / I let go of religion, and people become serene / I let go of all desire for the common good, and the good becomes common as grass. .oOo. [Tao Te Ching, Chapter 57, Stephen Mitchell translation]
// declan@eff.org // I do not represent the EFF // declan@well.com //
participants (3)
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Damaged Justice -
Declan McCullagh -
Will Rodger