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The burden is rightly on the owners of the open relays, not on
their victims.
No. The owners of the open relays are also victims. The guilty parties
are the spammers.
If I leave my house unlocked, and someone walks in and takes something
of mine, that person is guilty of theft. (However, because it was
unlocked, my insurance company -- by private contractual agreement --
may not be willing to pay.) It should not be necessary for me to spend
money or time to protect my possessions. The trend in computer-related
law is also in this direction: being charged with theft-of-service does
not require that a perpetrator breach some barrier, only that he or she
have used computer resources without permission.
There is a shovel in my yard, not locked up. If a person takes my shovel
without my permission, and uses it to kill another person, am I guilty?
I think not.
Perhaps the open relays operators are negligent (or lazy or whatever),
but the theft is being committed by the spammers.
The problem occurs because the current system is inadequate to make the
spammers liable in any practical sense for their actions. Although there
may be exceptions, it is usually infeasible to pursue them either by
civil or by criminal action. Part of the problem is technical -- which
we are considering -- and part is legal, which is beyond our charter.
If we can facilitate the prosecution of spammers for their crimes, then
perhaps it will not be necessary to make it a civil or criminal offense
to leave our electronic doors unlocked.
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