I'm asking for more rights, not restrictions (was Re: Antispam Bills: Worse Than Spam?)

[mindfuq at comcast.net]

* Roy M. Silvernail <roy at rant-central.com> [2003-08-02 23:06]:
> On Saturday 02 August 2003 23:35, mindfuq at comcast.net wrote:
> 
> > Ultimately, you could say my objective is to ask for more RIGHTS, not
> > RESTRICTIONS.  But rights also come in the form of law.  I'm not
> > asking for more restrictions on email.  
> 
> If we accept that the set of "natural rights" is fixed, then by asking for 
> more rights (for yourself), you are in fact arguing for more restrictions (on 
> others).

I would almost agree with that, but in this particular case I don't
see how tort law restricts them from sending spam.  With a tort law
that gives me a right to claim $500 per spam, they can still send
spam, in fact, I might even welcome the spam.  But then it's only fair
to compensate me for my damages and troubles.  Heck, I might even buy
the product they're selling at the same time.

> I have long argued that spam is tresspass and theft of service, but 
> I have stopped arguing for legislation because I recognize that it
> is futile.

You've given up?
 
> Your actions against telemarketers are successful because both you and the 
> telemarketer are within the same jurisdiction and tort law exists to support 
> your action.  But try to apply the same tort concept against some Chinese 
> spam generator (or Korean, or Romainian, ad infinitum) and you will quickly 
> see that the global nature of the internet renders regional tort law
> moot.

I'm not sure I agree with that.  Being outside of the U.S. would make
it more difficult for me to assert a claim, but not impossible.  I'm
no expert on this, but I believe there are lawsuits against overseas
companies, and I heard that countries basically trade
judgements.. ie. if we have $1 million in judgements against Canadian
companies, and vice versa, they enforce our judgements and in exchange
we enforce theirs.

> I keep a loose track of the spam I receive (typically >50/day) and a
> good 85% originates offshore, even though the benefiting party may
> be domestic.  Enacting tort law will simply drive the remaining 15%
> offshore, and the benefiting parties will just argue that they have
> been Joe-jobbed.

I don't know about your numbers, but lets assume they're accurate.  I
would be happy with going after the locals, because I want to be
compensated whether it's someone in my country or otherwise.  So it
would be a good start to get compensation for internal spam- no reason
to ignore that.  In fact, considering all the spam I get, and figuring
that I can only handle a few lawsuits a week while maintaining my real
job, 15% of of your 50/day leaves 7.5 emails per day that are
actionable.  Not bad.  That's more than enough.  If I get $500 per
lawsuit, I would actually feel that the whole spam problem is
resolved, because it would be enough compensation to collectively not
care about the foreign spam.

If the 15% are eventually driven offshore, that's still an
improvement.  But in reality, a large chunk of that 15% will just stop
what they're doing.  Also, if their email originates offshore, but
they still live locally, I can still sue them, because their personal
jurisdiction is within my long-arms reach.  Relocating servers does
not get them off the hook.  If I'm in New York, then they are doing
business in New York under New York's jurisdiction, and that is where
the forum would be.  Enforcement of the judgement would be in the
jurisdiction of their person, or their assets.  So if that's Florida,
that is where the money will come from.  The legal system doesn't care
if their servers are in Vanuatu.  

Sure it would be more difficult to trace them, but let's not deny the
private right of action for those with the resources and motivation to
make their claim.

> The problem is that the present email structure was designed for a
> more naive time when all parties were trusting and trusted.  The
> solution *is* a technical one. We must build fences against the
> tresspassers, but inevitably some will sneak through.  If you want
> to receive email, you will have to deal with email.  That's freedom,
> isn't it?

No, it doesn't have to be this way.  A system of trust is a good one,
as long as there is accountability.  I love not having any privacy /
blocking features on my phone.  Anyone can call me, and family members
aren't blocked or screened.  They get my voice immediately.  Even
telemarketers are free to call me; but if they dare break the TCPA,
they will have to compensate me.  This is a great arrangement because
I don't need to barricade everything and fear blocking people I want
to talk to.  I don't have to pay my phone company for privacy
features, adding to their profits while they sell my number to the
telemarketers simultaneously.  And when a bad guy gets through, I get
compensated well enough not to care.  In fact, I even welcome
telemarketing calls.. muahaha!

And I must say, the corporations are failing with their technical
solutions.  This is not working.  Spam still gets through, and I don't
get compensated when this happens.  My legitimate mail gets blocked
because the filters don't work, and even worse, I don't get
compensated when that happens.  Private corporations are abusively
exercising their power to regulate who can email who, and the
collateral damage is ignored.  These private corporations need to be
removed from power.  They should not have this power.  If an entity
must have this power, it should be the government, but certainly not a
careless profit driven heavyweight.

Spamassassin works pretty well, but this is a user level tool, not
being used by ISPs.  I would use spamassassin in combination with tort
law.  This would be the best protection.

As it stands, the technicians are blocking my legit mail, and I want
to sue these people more than anything.  They are causing more damage
and frustration than the spammers.  I won't rest until MAPS and AOL
are removed from power.