|
Re: [Asrg] Consent
2003-03-29 22:26:42
At 20:33 29/03/03 -0800, Brad Templeton wrote:
In free societies, you don't need advance consent to communicate with
somebody else. Consent can be rescinded, as in "go away" but it is always
on by default.
This is not entirely accurate. In common law jurisdictions, no amount of
consent or withdrawal of consent can affect the right to communicate per
se. If you are in public, somebody can yell at you all they like, subject
to any statutes to the contrary (such as statutes establishing public order
offences), and you can't do anything about it. On the other hand, if you
are on your own land, and somebody is yelling at you in such a way that it
interferes with your use of the land (complications arise here), then the
person doing the yelling commits a nuisance, and if they refuse to stop you
are legally entitled to slap them around until they do stop (of course I
wouldn't recommend this approach because in an individual case you may be
mistaken about the extent of their act and the extent of your right to abate).
And since, on the internet, there is _no_ communication without use of the
private property of the other party to the communication, it means you don't
need advance consent to use somebody else's property to communicate with
them.
Now here you come closer - when you use the private property of another you
do need consent to use the property, but the consent is implied in the
cases you appear to be worried about. Elsewhere, YMMV, for example in
Scotland there appears to be no requirement for consent to merely use
another person's chattels.
To define communication without advance consent as some sort of offence
would turn our definitions of a free society and an open communications system
upside-down.
Well yes, if you mean "all communication", but it's not an "all or nothing"
rule. Implied consent as understood by the law deals very well with this.
To determine what is covered by implied consent you look at:
a. What is necessary for the function of society in
the circumstances;
b. What is accepted by society; and
c. What can reasonably be inferred by the actions of
the possessor of the property.
These are not necessarily exclusive factors. There may be other relevant
factors in individual cases, but these factors cover most everyday
situations, and the factors in individual cases will often be referable
back to one or more of these. For example, in the case of email, the fact
that SMTP as a protocol demonstrates a design centred on person to person
messages and another protocol (NNTP) demonstrates a design centred on
broadcast messages (even having substantially the same message format)
would be a relevant factor for determining what is necessary, and what can
be inferred.
For example, having an open shop front entails implied consent to enter for
the purpose of shopping, but if you enter for the purpose of shoplifting,
you enter as a trespasser. If you enter for the purpose of soliciting
customers to your nearby competing shop, you also enter as a trespasser.
The implied consent is not an unbounded consent to enter, but is a consent
limited to the purpose that is in that case necessary, accepted, and
reasonably inferred.
In the case of a private residence, there is implied consent to enter via a
marked path to knock on the front door, but if you enter for the purposes
of breaking in, or if the path goes past the main bedroom window and you
enter for the purpose of peeping, then you trespass as soon as you set foot
on the private land.
If somebody gave you a URL, you could not click on it without
knowing if the web host consented to you clicking on it.
This is clearly within the scope of implied consent, because it is (a)
necessary, (b) accepted, and (c) reasonably inferred by the actions in
putting up a web site.
If you got a referral where I told you to e-mail my friend, you could not
mail him for fear you did not have his consent.
Person to person email is clearly within the scope of implied consent and
testing against the three criteria clearly indicates that this would be so.
And If I want to mail you to flame you about how stupid
the opinion you posted on your web site is, well, who would suspect you give
your consent to be flamed?
This one is a little more difficult. Arguments on the "necessity" of this
could go either way. It is probable that inference from conduct would go
against, since most people don't like to be flamed. The acceptance test
would suggest that society accepts the need to infer implied consent for
flames, although this may vary depending on the free speech beliefs of the
particular society.
I would come down on the side of personal flames being within the scope of
implied consent, even though the recipient probably doesn't want them.
it is always on by default. People can even come onto your private land to
come to talk to you unless you explicitly mark it no trespassing.
"No trespassing" is probably insufficient for this purpose. The sign would
have to make it clear that implied consent is withdrawn, or withdrawn for a
particular class. For example, "No hawking" clearly withdraws consent for
door-to-door salespeople, but "No trespassing" per se is redundant, since
if there is consent (even implied consent) there is no trespass.
So because consent would be incredibly difficult to define, and it's a bad
idea to bring it into the spam definition
If you define spam as "unsolicited bulk", then it fails the necessity,
acceptance and inference tests.
If you define spam as "unsolicited commercial" (such that an individual
message is spam), then you are in a less certain area. All three criteria
can be argued either way, and I suspect acceptance is diminishing over
time. I would still come down on the side of "unsolicited commercial" but
"personal" as being within the scope of implied consent.
--
Troy Rollo Chairman, CAUBE.AU
asrg(_at_)troy(_dot_)rollo(_dot_)name Executive Director,
iCAUCE
_______________________________________________
Asrg mailing list
Asrg(_at_)ietf(_dot_)org
https://www1.ietf.org/mailman/listinfo/asrg
|
|