From: Declan McCullagh <declan@eff.org>
Date: Mon, 9 Sep 1996 06:18:06 +0800
To: Will Rodger <rodger@interramp.com>
Subject: Re: Court challenge to AOL junk-mail blocks
In-Reply-To: <1.5.4.32.19960907204437.0068b4d8@pop3.interramp.com>
Message-ID: <Pine.SUN.3.91.960908123138.821J-100000@eff.org>
MIME-Version: 1.0
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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 //