--- 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 messages. 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 messages to someone EVEN IF THE RECIPIENT WISHES TO RECEIVE IT. 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 _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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