Subject: [Asrg] Legal Suggestions ....

From: Art Pollard <[email-masked]>
Date: Fri, 11 Apr 2003 17:08:14 -0600

One thing that we might be able to do while we are trying to figure out 
what technical solutions are feasible is to come out with an interrum

"Guide For Anti-Spam Legislation" which we can provide for legislators who 
are working on passing or updating anti-spam legislation.

So, in this way, while we are working on a technical solution, our 
legislators can be working on a legal solution.  Also, it could carry a bit 
of weight for our legislators to be able to say: The Internet Engineering 
Taskforce recommends the following legal remedies.

-Art
-- 
Art Pollard
http://www.lextek.com/
Suppliers of High Performance Text Retrieval Engines.

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From: [email-masked]
Date: Sat, 12 Apr 2003 21:35:56 -0400

On Fri, Apr 11, 2003 at 05:08:14PM -0600, Art Pollard wrote
> are working on passing or updating anti-spam legislation.

  I live in Canada, and made a submission as a private citizen when the
government called for coments on emarketing.  Here is a verbatim extract
from that submission.  I believe it is just as valid in the USA...

- "A role for government"

  I don't ask governments for extra assistance, I ask instead that they
not stab the internet community in the back as we battle against UBE
(aka spam).  In the USA, corporate spammers with deep pockets have taken
to suing any group that recommends blocking them.  MAPS, which was the
original hero in the war against spam has been SLAPPed into
ineffectiveness.  The current popular hero is SPEWS, a group which has
to remain anonymous and shadowy to hide from corporate spam barons who
engage in legal thuggery and threaten to sue blocklist maintainers into
bankruptcy.  All I ask for is...

  a) the government recognize that "the internet" is a network of private
     networks that are the private property of their respective owners,
     who excercise full control over them.  I.e. they are *NOT* "common
     carriers".  They have no obligation to accept any data packets,
     other than those obligations spelled out in contracts, i.e. peering
     agreements or contracts with customers or other signed contracts.
     Therefore no legislation or regulations be enacted which would force
     any data packets, including email, to be accepted against the wishes
     of ISPs and their paying customers.

  b) that ISP's and blocklist maintainers be held harmless for
     good-faith efforts to block/reduce unwanted email.  This includes
     deliberate boycotts of non-spamming address space of bandwidth
     providers who host spammers in other parts of their address space.
     And *YES*, this does include the old customer-of-a-customer-of-a
     customer finger-pointing scenario.

  c) the fact that refusal of data traffic, other than that required by
     contract, deprives someone of revenue shall *NOT* constitute cause
     for civil or criminal court actions or other government sanctions
     against any person (corporate or human being) that...
     1) maintains and/or publishes a blocking list (DNSbl)
     2) operates a mailserver that receives email from the internet, and
        chooses to reject email traffic that they are not obligated by
        contract to accept.

-- 
Walter Dnes <[email-masked]>
An infinite number of monkeys pounding away on keyboards will
eventually produce a report showing that Windows is more secure,
and has a lower TCO, than linux.
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From: Larry Marks <[email-masked]>
Date: Tue, 15 Apr 2003 02:48:00 -0700

[email-masked] wrote:

>All I ask for is...
lots more than any other industry gets!

>     of ISPs and their paying customers.
The telephone network is also a collection of private networks and 
switches. It comprises a number of different companies, each with 
different business philosophies and rules. Fortunately, government 
requires them to interconnect and carry each other's traffic. Without 
this level of regulation, it would be chaos. (I've been places where it 
was that way!) Of course, this level of regulation is only really 
applicable to technologies that are vital to commerce.

Even telephone companies don't have to carry all traffic. They can 
disconnect customers and refuse to handle traffiic for a variety of 
reasons. But they can only do that to their own customers, not others'. 
Blocklists work just the other way around. The ISPs don't have to be 
responsible for its own customers. They need only worry about blocking 
traffic from their competitors.

Now, if telcos could block each others' traffic, it would certainly 
solve the problem of having too many of them to choose from...

>     customer finger-pointing scenario.
This provision would free ISPs from any liability, even if due to gross 
neglegence. Why should ISPs, in particular, receive this special 
dispensation in law that no other business or industry receives?

>        chooses to reject email traffic that they are not obligated by
Once again, you have carved out a monsterous exemption for ISPs that 
other businesses don't get. Under this, ISP A could, without criminal or 
civil penalty, refuse to accept any traffic from ISP B even if the only 
reason for doing so is to put ISP B out of business so as to gain 
control of a market. Wow!
-----------------
ISPs are unregulated public utilities. They need to conduct themselves 
that way if they want to stay that way. They don't need or deserve 
special treatment such as what you propose.

If ISPs really want a solution to the problem of Spam, they should stop 
being part of the problem. They should form a transparent trade group 
and agree a code of conduct. A properly constructed code of conduct 
would by itself result in substantial spam reduction as ISPs wishing to 
retain customers will drop their seamy but profitable side businesses.

If the ISPs *then* want to implement some sort of blocklist, a buyer 
will at least have some idea of what ISP to use so as to ensure hir mail 
will get through. Without a code of conduct, smaller honest ISPs will be 
at a serious disadvantage. Users will hear about Aunt Martha being 
blocked and run to the safety of the big ISPs. The others will not survive.

When ISPs do implement their spam solutions, I certainly hope they (and 
IRTF?) can find something finer than a chainsaw to solve the problem. As 
public utilities, they owe it to their subscribers to provide a 
competently engineered and interoperable solution - one that emphasizes 
getting the mail through rather than blocking it.

  -LM

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From: [email-masked]
Date: Tue, 15 Apr 2003 19:47:42 -0400

On Tue, Apr 15, 2003 at 02:48:00AM -0700, Larry Marks wrote

> special treatment such as what you propose.

  I am *NOT* asking for special treatment for ISPs.  They are *NOT*
public utilities.  That's why I'm saying they shouldn't treated as such.

> If ISPs really want a solution to the problem of Spam, they should
> stop being part of the problem. They should form a transparent trade
> group and agree a code of conduct. A properly constructed code of
> conduct would by itself result in substantial spam reduction as ISPs
> wishing to retain customers will drop their seamy but profitable
> side businesses.

  Cough, splutter, yeah, just the DMA has a "code of conduct".  Let's
assume, for the sake of argument, all those people on the "Millions CDs"
really *DID* want those ads.  There is a very simple solution that would
not require any conferences, or standards, or legislation.

  The email marketers could set up their own "legitimate commercial
email delivery" ISP, which they would control end-to-end, and willing
"newsletter subscribers" could join that ISP.  Not only will they
guarantee delivery of their messages to willing subscribers, but those
people who buy stock early in the new ISP will MAKE_MONEY_FAST as the
stock shoots up through the roof when millions of newsletter-starved
subscribers come crawling in on their hands and knees, begging to be
allowed to join up.  The financial carnage amongst today's big ISPs will
be horrendous when people find out about all the "exciting offers"
they've been missing and abandon the big names in droves.

  OK e-marketers, if you're really telling the truth about all your
millions of eager "double-opt-in-subscribers", this is your opportunity
to...
  - guarantee email delivery *TO WILLING RECIPIENTS ONLY*
  - and make a financial killing
  - and prove that you aren't out to JamSpamDownTheThroats of unwilling
    recipients

  I'm even willing to be there to cut the ribbon at the opening ceremony
for that ISP.  ***PUT UP OR SHUT UP***.

  If, instead, somebody wants to *FORCE MY ISP* to accept their garbage,
treading on rights of free association (and the 4th Amendment in the USA)
those actions would give me reason to believe that they're
spammers-in-waiting just itching to JamSpamDownMyThroat.

---

From: Larry Marks <[email-masked]>
Date: Wed, 16 Apr 2003 22:14:59 -0700

>public utilities.  That's why I'm saying they shouldn't treated as such.
There are three points I would make in response:

1. Call them iron and steel makers or anything you want. What you are 
proposing is protection from liability that no other industry gets. You 
are asking that of all the kinds of businesses in the universe, ISPs and 
only ISPs should receive an unprecedented level of protection from 
liability. And you say that you are not asking for special treatment?

2. ISPs deserve no legislative protection until they have exhausted 
non-legislative alternatives. The behavior of at least some ISPs makes a 
major contribution to the problem of spam. ISPs could get together and 
publicly identify the offenders, so that consumers could make an 
informed decision as to what ISP to hire. Apparently, however, the ISPs 
are unwilling to police themselves - caveat emptor, so I see no reason 
why legislators should accomodate them at this time.

3. ISPs look like public utilities. They act like public utilities. They 
feel like public utilities. All I said is that they are unregulated and 
if they intend to stay that way, they had better start acting 
responsibly. But regardless of whether they are public utilities or 
something totally unique, I can assure you that any legislature that 
wants to stay in office will not see it your way if the public is not 
being well served.

>  Cough, splutter, yeah, just the DMA has a "code of conduct".
>
Lots of industries have and enforce codes of conduct effectively. What 
you are telling me is that the ISPs are unwilling to do so.

>  Let's assume, for the sake of argument, all those people on the "Millions CDs"
>really *DID* want those ads.
>
Well, that's silly. I don't and I don't believe most people do. Anyway, 
it isn't germain to the issue.

>There is a very simple solution that would not require any conferences, or standards, or legislation. The email marketers could set up their own "legitimate commercial
>"newsletter subscribers" could join that ISP.<...>
>
You can duck but you can't hide. The ISPs originate a large percentage 
of the spam and you can't shift the responsibility for that to the 
marketers. If the ISPs didn't sell, then the marketers couldn't market. 
It's that simple.

I am not a voice for the marketers or against the ISPs. I represent 
consumers - non-technical business consumers. They deserve straight 
answers and competently engineered products. I don't think that's too 
much to ask.

  -LM

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From: [email-masked]
Date: Fri, 18 Apr 2003 08:53:47 -0400

On Wed, Apr 16, 2003 at 10:14:59PM -0700, Larry Marks wrote
> 1. Call them iron and steel makers or anything you want. What you
> are proposing is protection from liability that no other industry
> gets. You are asking that of all the kinds of businesses in the
> universe, ISPs and only ISPs should receive an unprecedented level
> of protection from liability. And you say that you are not asking
> for special treatment?

  Email's origin is as a hobby on DARPANET/FIDOnet/BBS's etal.  You are
effectively asking for the nationalization (government takeover) of
email.  DARPANET and FIDOnet and other inter-BBS systems never claimed
to be 100% reliable business communications channels.  FIDOnet etal used
shunning/boycotts from day one.  If big business wants a reliable
communications channel, let them build their own.

---

From: Larry Marks <[email-masked]>
Date: Fri, 18 Apr 2003 07:51:44 -0700

>communications channel, let them build their own.
Your comment is a temper tantrum, not a response to anything I wrote.
The fact is you are too late. The IAB pushed for wide acceptance of its
protocols by  business during the 80s. If you don't like it, take it up
with the IAB. You need to get real.

  -LM