[Politech] John Gilmore on spam laws and why EFA's position is wrong [sp]

From: Declan McCullagh (declan@private)
Date: Fri Oct 03 2003 - 19:40:19 PDT

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    To: Declan McCullagh <declan@private>
    cc: spambills@private, gnu@private
    Subject: Re: [Politech] Electronic Frontiers Australia on problems with 
    anti-spam laws [sp]
    Date: Fri, 03 Oct 2003 16:03:06 -0700
    From: John Gilmore <gnu@private>
    I'm glad to see that EFA has noticed that prohibiting the sending of
    unsolicited commercial email is censorship.
    Unfortunately EFA is still trying to leave a blanket prohibition on
    the sending of email messages, while "crafting" a set of loopholes to
    that prohibition that would let ordinary people send ordinary email
    This puts the cart before the horse.  The default should be that
    sending emails -- commercial, charitable, governmental or otherwise --
    should and must be legal.  Just as sending verbal messages in person,
    that is, approaching someone to speak, should and must be legal.  In a
    particular circumstance (e.g. when someone has harassed you before,
    and you've proven this to the satisfaction of a court, and the court
    has issued an order to that person), then speech by a particular person
    to you may be made illegal.  But any significantly broader prohibition
    renders "guarantees" of free speech meaningless.  You can speak all
    you want, as long as most Australians don't get annoyed at you, in
    which case they'll pass a law against your kind of speech.
    (I understand that in Australia there is less freedom of speech than
    in America.  But that's no reason to make Australia even less free in
    the name of spam-fighting.)
    The rest of EFA's recommendations make it clear that they, like so many
    others, have lost their bearings.  "When the topic is spam, civil rights
    go out the window."  EFA should spend more of its attention on protecting
    everyone's right to communicate with everyone else -- and less time on
    deciding in detail who "should be permitted" to speak with whom.
    The only person who can decide which messages are wanted and which are
    unwanted is the recipient.  Both the bill and EFA cite examples in
    which recipients would want, or not want, particular messages,
    supporting their ideas of how the law should be worded.  But my point
    that they are missing is that they have left the recipient out of the
    decision.  Under these proposed laws, it is illegal to send certain
    So let's include the recipient in the calculation.  Make a law that
    says it's illegal to send someone a message if the recipient decides
    that they don't wish to receive it.  Of course, this leaves every
    message sender wide open to being screwed by any recipient of any
    message.  Tenants can make their landlord pay; landlords can make
    their tenant pay; politicians can make their voters pay, and vice verse,
    whenever they communicate.  It would certainly cut down on communication,
    which is what the "anti-spam community" seems to want.
    The catch, of course, is that it makes no "justice"; it makes rule by
    one party (the recipient).  Shall we make it illegal to send a letter
    to someone who does not wish to receive it, too?  How about a
    postcard?  A phone call?  Calling out hello to someone?
    Citizens want cheap communication; they call their friends, they email
    their family and their interest groups; they flood their elected
    officials with email or faxes for or against proposals.  They post
    notes around the neighborhood for-or-against politicians or issues.
    They advertise their own products and services.  They want to be able
    to send any message they want, to any people they want.  They just
    don't want to receive all the messages that the other six billion
    people want to send THEM.  "Free speech for me, not for thee" is
    what's going on here.  The entire idea of regulating the sending
    of email should be dropped.
    	John Gilmore
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