Subject: Re: [Asrg] filtering at connect time

From: "Dr. Jeffrey Race" <[email-masked]>
Date: Fri, 07 Mar 2003 11:23:12 +0700

On Thu, 6 Mar 2003 14:29:29 -0800 (PST), Michael Marking wrote:

>There is a shovel in my yard, not locked up. If a person takes my shovel
>without my permission, and uses it to kill another person, am I guilty?
>I think not.
>
>Perhaps the open relays operators are negligent (or lazy or whatever),
>but the theft is being committed by the spammers.

The terms of art are 'contributory negligence' and 'attractive
nuisance'.   If you leave your swimming pool unlocked, and a 
neighborhood child invites his friends over for a swim (without
your permission) and someone drowns, YOU would definitely go to
prison in most jurisdictions I know of.

I have just posted a Best Current Practice addressing this matter
but it seems not to have gone through.  I expect to repost for
comment shortly.

Jeffrey Race

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---

From: Michael Marking <[email-masked]>
Date: Thu, 6 Mar 2003 21:58:19 -0800 (PST)

> prison in most jurisdictions I know of.

Those are indeed terms of art, but they are misapplied here.

"Contributory negligence" is a defense made against a plaintiff,
alleging an act or omission amounting to want of ordinary care on
the part of the plaintiff. The term would only apply in a complaint
brought by the operator of the open relay against the spammer: the
law might reasonably excuse the spammer because the open relay
operator didn't take steps to close the relay. However, as a
victim of spam, I can't make a claim of contributory negligence
against an open relay operator, since contributory negligence is
an act of the plaintiff (which would be me, if I were to make
the complaint).

"Attractive nuisance" applies to an inherently dangerous or
hazardous object or condition of property that might be expected
to attract children to play or investigate. Common examples are
discarded appliances, construction sites, firearms, and swimming
pools. Basically, the doctrine assumes that a higher level of
care is required for an attractive nuisance. However, the doctrine
doesn't apply here because (1) we aren't talking about children,
(2) we aren't talking about injuries to trespassers (spammers),
and (3) we aren't talking about a nuisance.

"Nuisance" arises from unreasonable, unwarranted, or unlawful use
by a person of his own (or public) property. It is not the open
relay operators who use the relays in any unreasonable, unwarranted,
or unlawful fashion -- it is the spammers. Nuisance may also arise
if the property owner fails to perform some legal duty, but I'm
not aware of any laws requiring that relay operators close their
open relays.

The law doesn't necessarily condemn those who simply act immorally
or improperly. For example, there is no law against being generally
rude and not telling the truth, except in special circumstances.
There is also no law against operating an open relay. Therefore,
it is counterproductive to characterize behaviours as "illegal" when
they are not, because it might lead someone to believe complacently
(and without justification) that appropriate rights and remedies
already are in place. To the extent that such rights and remedies
don't already exist, that helps to prevent us from creating them.

---

From: Vernon Schryver <[email-masked]>
Date: Fri, 7 Mar 2003 11:26:14 -0700 (MST)

> From: "Dr. Jeffrey Race" <[email-masked]>

> ...
> ...

Who died and made you king of the IETF?
(Please don't be insulted by that, because I meant it in jest.)

My point is that all of the talk of BCPs, germs of BCPs, IDs for
the solution to the spam problem and so forth that I've seen in the
flood of noise on this list is not only grossly premature, irritating,
and often insulting, but also seems to be based on a misunderstanding
of the IETF and the IRTF.  No one can simply "post a BCP."  BCPs
are RFCs and that means they must get the approval of the IESG or
at least the IAB merely to be advanced from ID (Internet Draft) to RFC.
To become a BCP an RFC must be supported by the consensus of the IETF.

This is an IRTF mailing list, not the mailing list of an IETF working group.
As such, it seems like a distant source for BCPs.  BCPs are necessarily
operational ('engineering') documents instead of what you'd except
from the Internet Research Task Force.

Just writing some thoughts according to the instructions for authors
of Internet Drafts and calling them a BCP does not make them valid or
cause them to be supported by the consensus of the IETF.  Not even
Microsoft was able to carry off naming files on a microsoft.com FTP
server "RFC's." (early Microsoft PPP contributions)

Vernon Schryver    [email-masked]
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