Any 'legal' measures will --and the thought I have is 'will always'-- be
subject to the jurisdiction of the legislation. We can not design a solution to
address that broad a spectrum of contingencies. Instead, we should focus on
the technical approach that may be adopted where it can be adopted. In some
jurisdictions it may not be possible to adopt methodology #1, but it may be
possible to adopt methodology #2, etc...
The inherent issue I see in trying to develop something that has such a wide
gamut of possible legal impediments or supports is that it must work in the
first instance and be configurable to work within a stipulated legal framework
in the second. So I am not saying these issues should not be considered at
some level but rather that it can not be addressed outside of the technical
architecture of the solution/methodology, e.g. configurability. No engineering
solution to a subjective 'problem' will be purely technical, and as you say
that may present other problems, however -- this is a technical forum -- we
should be working on the first instance (the technical solution) prior to
engaging into debate about how a particular jurisdiction will manage the
deployment of such a technology. That is their problem or benefit, so to
speak, but only if we can develop a viable candidate solution/method.
Concerning the commercial realities involved surely you would agree that
providing a service for a fee to whomever is 'spamming' would not be in the
best interest of a 'provider' who would flagged or otherwise technically
penalized by a viable solution - regardless of it's legalities. Losing the
legal case is not going to stop spamming from occurring if in fact it is
illegal it will become an enforcement issue, if the legal case is won it will
become a control issue. Either way technical measures must be employed to
manage the 'problems' associated with 'it'.
If we approach the technical solutions for enforcement and/or control, we will
likely fall right in the middle of any legal framework or jurisprudence
where that is an issue.
my $.02
-e
On Thursday, April 17, 2003 11:47 AM, Tom Thomson
[SMTP:tthomson(_at_)neosinteractive(_dot_)com] wrote:
White, Sam wrote on 17 April 2003 15:37
I also agree. Legal solutions are already being worked on, but are never
going to be sufficient to adequately solve the problem. The most that a
legal solution can do is bring some measure of uniformity to the law,
making
spam easier to address. The only true, effective solution is going to be a
technical one, IMHO.
I think there is an inherent problem in any purely technical approach: if
something is legal, it may turn out to be illegal to take measures to
prevent it. Obviously this is not going to impact filtering by receivers,
but do we want to waste our time filtering? Technical activity other than
by receivers or those acting explicitly as their agents may fall found of
the law unless it has a clear legal basis.
Surely there are sever problems inherent in any purely technical approach
that ignores the commercial and legal realities that have given rise to the
problem? Shouldn't technical measures be devised bearing in mind the legal
environment in which they will be deployed, and taking into account also the
commercial relaities? While some ISPs are making a lot of money out of
providing services to spammers, they are not going to adopt technical
measures against the spammers unless legally or commercially compelled to do
so (and maybe legal compulsion won't work without commercial penalities on a
scale that outweighs the profit from spammer-support activities).
In the EU at least, spam is (or will shortly be) illegal. ISPs to do not
take action to prevent their systems to be used for spamming will be
negligently enabling an illegal activity, which in at least some EU
jurisdictions will itself be an offence and in most if not all will leave
the ISPs open to civil action by the spammers' victims. I'm not too sure
what the state of US law is, but http://www.camblab.com/nugget/spam_03.pdf
suggests that US law could be used quite effectively to combat US based
spammers (by compelling ISPs and backbone providers to enforce their
contracts).
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