Subject: [Asrg] RE: Analogies

From: "Hallam-Baker, Phillip" <[email-masked]>
Date: Wed, 5 May 2004 09:03:06 -0700

> Can we (as a group - I don't intend to single Phillip out) stop with 
> the bad analogies? We seem to keep filling this list with awful 
> analogies to the real world that make no sense whatsoever. 
> The internet email system is different.

The human mind works by analogy. If you believe Lakoff every argument
including mathematics is by analogy. so it is not a very useful request.

> Examples of bad analogies seen here:
> 
>   - SMTP compared to the postal system
>   - The internet email system compared to the telephone network
>   - Sender-pays compared to cars that run on water
>   - Blacklists compared to credit agencies
>   - Blacklists compared to restaurant critics

All analogies are bad. The question is whether the applicability
of the analogy is understood or not.

The comparison of blacklists and credit agencies is being raised
by the blacklist side. I was pointing out that it is a falacious
argument because the analogy does not hold.

In fact if you look at the credit agency analogy you can see the
reason that a blacklist has a problem re tortious interference.
Credit agencies do not release information about a consumer without
the express consent of the consumer given in advance. That consent
is set out in the form of a contract.

Sure you can do some Napster style lawyering and argue that these
differences are immaterial, that the fact credit agencies exist and
operate in a highly restrictive manner under regulations that grant
safe harbor means that blacklists have carte-blanche. But in the real
world those arguments do not hold water [and if they did you still
could not run your car on it].

The best analogy for blacklists is probably restaurant critics. And
in that world there is definitely serious liability. A critic is
unlikely to be sued over anything as subjective as awarding three
or five stars. But a critic who posted 'food was inedible, sanitary
conditions dangerous' could be sued in a heartbeat.

Blanket analogies such as those made by blacklist proponents fail 
because they are of the form 'X is legal, blacklists are like an X,
therefore blacklists are legal'. I am pointing out that to operate
within the law X has to observe some very basic legal principals that 
the blaclists appear intent on ignoring. 

One of the most basic principles is providing a registered business
address. If blacklists want to take advantage of any form of limited
liability this requirement applies to them.

> I could probably go on...
> 
> Analogies have ceased to be a useful tool, especially on this 
> list. Can we stick to reality?

There is very little case law that relates to blacklists, and that which 
does exist is constructed on the basis of analogy. If you follow the
early cases in almost any Internet related field you will see 
arguments over what the correct analogy should be.

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From: Matt Sergeant <[email-masked]>
Date: Wed, 5 May 2004 17:58:21 +0100

Phillip,

I get the feeling you're happy with certain blacklists. It's two issues 
[*] you feel stuck on: 1) Collateral damage and 2) anonymity. So I'll 
try to address those.

Collateral Damage
-----------------

This is a really tough issue. There's really only one DNSBL that I 
support in terms of its collateral damage policy and that is the SBL. 
They will escalate a listing from the IP addresses sending spam to the 
corporate mail servers of the ISP in question if they are unable to get 
action from that ISP in removing the spammer. They do not do this 
lightly - only after making numerous attempts to contact the ISP both 
via email and telephone calls. Note the fact that the escalation is not 
to the entire ISP - just to the corporate mail servers of the ISP.

This seems to me to be a useful technique to kick spammers off the ISP. 
It has worked. And this level of collateral damage doesn't have too 
negative effect on the customers of the ISP.

However we didn't feel we could codify this technique into the BCP. 
Maybe we should. Instead we tried to steer towards collateral damage 
being the LAST resort.

We did not wish to outlaw the SBL, as it is a VERY good blacklist, and 
is run very well and is highly respected. Creating a BCP which outlawed 
the SBL would have a far greater negative effect than creating a BCP 
which allows it to escalate listings.

If you do not feel we are currently doing so in this BCP then please 
help us strike a middle ground instead of declaring the BCP pointless.

Anonymity
---------

We did not wish to prevent anonymity in the BCP because it provides 
useful protection to the people who run these services. This has become 
necessary not because what they are doing is illegal, but because the 
cost of even a failed lawsuit in the US is too much for the creators of 
the blocklists to bear.

So there's a rock and a hard place. A good blocklist like the CBL is 
anonymous for the reason above (and other reasons). And yet it only 
lists insecure machines for a short temporary period. It stops varying 
amounts of spam for people (in the range of 40% to 80%) with 
practically zero false positives. Having the CBL around makes internet 
email much better than not having it.

Do I wish that these blocklists could all be public facing and not 
anonymous? Absolutely! But the reality of your litigious society has 
ensured that this is becoming more and more difficult.

I cannot comment on the legality or otherwise of being anonymous and 
anyone else who cannot comment on it (because they are not lawyers) 
should not.

Matt.

[*] Feel free to correct this if I'm assuming wrong.

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From: "Dr. Jeffrey Race" <[email-masked]>
Date: Wed, 05 May 2004 12:29:19 -0400

On Wed, 5 May 2004 09:03:06 -0700, Hallam-Baker, Phillip wrote:

>But a critic who posted 'food was inedible, sanitary

Of course he can be sued; I have been sued many times and
appeared in court hundreds of times.   The point is that (with rare exceptions)
 truth is an absolute defense in a defamation case.   There are many other
 defenses (e.g. good faith, public duty).

The point of  a practice is to spell out proper rules.   If the rules of practice
are proper, public, and serve a non-discriminatory public purpose, the
industry body propounding the practice is liable for nothing more than
harassing litigation, likely not even that.    A blacklist operator who 
violates the rules may be liable, or may not, in some venue on some
cause of action.   That is right and proper.    The way to make a good
blacklist system is to have a good industry practice.   People who
run bad blacklists get run out of town.  (It happened in one famous case.)

I will address tortious interference in another message.

Jeffrey Race