Even though we are not chartered to look into the legal aspects of spam,
the legal issues are still relevant since they affect the technical ones.
Therefore I wanted mention the following SlashDot story:
http://yro.slashdot.org/yro/03/05/09/1647209.shtml?tid=99&tid=123
which references the following article written by a George Washington
University Law School professor:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=399740
---[snip]---
"Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer
Misuse Statutes"
Abstract:
In the last twenty-five years, the federal government and all fifty states
have enacted new criminal laws that prohibit unauthorized access to
computers. These new laws attempt to draw a line between criminality and
free conduct in cyberspace. No one knows what it means to "access" a
computer, however, nor when access becomes "unauthorized." The few courts
that have construed these terms have offered divergent interpretations, and
no scholars have yet addressed the problem. Recent decisions interpreting
the federal statute in civil cases suggest that any breach of contract with
a computer owner renders use of that computer an unauthorized access. If
applied to criminal cases, this approach would broadly criminalize contract
law on the Internet, potentially making millions of Americans criminals for
the way they write e-mail and surf the Web.
This Article presents a comprehensive inquiry into the meaning of
unauthorized access statutes. It begins by explaining why legislatures
enacted unauthorized access statutes, and why early beliefs that such
statutes solved the problem of computer misuse have proved remarkably
naïve. Next, the Article explains how the courts have construed these
statutes in an overly broad way that threatens to criminalize a surprising
range of innocuous conduct involving computers. In the final section, the
Article offers a normative proposal for interpreting "access" and
"authorization." This section argues that courts should reject a contract
theory of authorization, and should narrow the scope of unauthorized access
statutes to circumvention of code-based restrictions on computer
privileges. The section justifies this proposal on several grounds. First,
the proposal will best mediate the line between securing privacy and
protecting the liberty of Internet users. Second, the proposal mirrors
criminal law's traditional treatment of crimes that contain a consent
element. Third, the proposed approach is consistent with the basic theories
of punishment. Fourth, the proposed interpretation avoids possible
constitutional difficulties that may arise under the broader constructions
that courts recently have favored.
---[snip]---
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