On 12 Mar 2004, Paul Vixie wrote:
ultimately it was found that no law or regulation required carriage, and
that an ISP (whether in the US, Canada, or EU) could subscribe to any
blackhole list they wanted, and the only recourse any of their customers
had was whatever was explicitly spelled out in their contracts.
No such thing was ever found. And just the opposite was proved to you in
Exactis V. MAPS. That lawsuit was settled out of court, and MAPS
proponents like to pretend it didn't happen. However, before it was
settled, there were some preliminary decisions made regarding the case.
MAPS tried to have it dismissed on the grounds that MAPS had a first
admendment right to say whatever they want. That argument was rejected,
and is significant to continued claims by radicals of some First Amendment
right to say whatever they want.
Indeed, MAPS didn't contest any of the facts asserted. Those facts
justified a Temporary Restraining Order. As a matter of legal procedure, a
Temporary Restraining Order can only be granted if, after assuming all the
facts asserted to be true, the case can succeed. A TRO is an important
test of the merits of the case. The rest of a case is then a dispute over
the facts and the defenses to them. Two legal teams (one for Vixie, one
for MAPS) could only find a frivolous First Amendment defense, which was
rejected. MAPS choice was clearly to settle or lose. MAPS attorney was
chastised for the frivolousness of the dispute. This is a message to the
attorney's of other blacklists, and was reported in many legal journals.
I include a quote from one of the the Exactis V. MAPS briefs below, which
is illuminating of anti-trust law.
Besides antitrust law, there are state electronic communications privacy
laws that apply. State laws broadly prohibit any interference with
communciations, which is broad enough to include the blacklist. There are
also a number of torts that can be brought, but I won't go in them here.
Exactis V. MAPS is clearly a reference for blacklist cases. Of course,
MAPS isn't an ISP, and while ISPs are also subject to anti-trust law
either by contracting with blacklists or by becoming a member of the
group, there are some differences in what laws apply to ISPs, and thus the
legal constraints that ISPs operate under. Pretty much everything(torts,
anti-trust, state law) that applies to a blacklist also applies to an ISP,
and there are some more things that apply to ISPs. You can fairly say
that if a blacklist can't win on this issue, an ISP doesn't have even a
prayer---even God would chastise an ISP's lawyer for being frivolous. :-)
The federal Electronic Communications Privacy Act (ECPA) applies to ISPs.
There are number of cases in which claims were made under the ECPA. The
closest case to ISP email issues is Konop V. Hawaiian Airlines. In Konop
V. Hawaiian Airlines it was held that a password, giving access to a
website obtained in violation of an agreement not to give anyone else
access, did not represent the necessary authorization to access stored
communications.
Similarly, an ISP has passwords to mailservers and routers, and the
authorization from customers to do certain things, but not to do other
things. Merely having the root password does not mean that you have
authorization to do whatever you please.
On Fri, 12 Mar 2004, Vernon Schryver wrote:
Your right to send mail stops at the border routers of your ISP.
No, your right to send mail stops at the recipient's ISP and not before,
and then only to the extent the recipient has granted some permission to
the ISP.
The Congress writes reports representing the intent of Congress and
explaining complicated legislation. In the absence of specific case law
binding the court, such reports are used to guide the court as to the
intent of Congress when resolving any ambiguities on how to apply
statutory language to specific sets of facts. House Report 99-647
reported on the Electronic Communications Privacy Act. There is also
Senate Report 99-541.
Radicals often try to mislead people into thinking that no laws apply to
email or the internet. That is totally false. Regarding your privacy
rights from House Report 99-647 says at page 33;
"Similarly, where a user has interconnected its own equipment into
a private network, communications carried on the network are fully
entitled to the provisions of Section 2511".
The intent of Congress is pretty much dead on to the question of whether
an ISP can do whatever it pleases. Your ISP has also connected its
equipment to other private networks, which are subject to 2511, and so on.
Email is frequently mentioned in both the House and Senate Reports. The
following quote is from "Statement of [Senator] Patrick Leahy on the
Introduction of the Electronic Communications Act of 1985', September
19th, 1985" (the law was not passed until 1986)
"At this moment phones are ringing, and when they are answered,
the message that comes out is a stream of sounds denoting one's and
zero's. Nothing more. I am talking about the stream of information
transmitted in digitized form, and my description covers everything from
interbank orders to private electronic mail hookups".
Radials often they try to make people believe that the ECPA only covers
common carriers. That is totally false. While the Wiretap Act of 1968
only applied to common carriers, that language was modified in 1986.
Such claim isn't supported in the present statutory language. Further,
such claim is contradicted in the Congressional Reports. Further still,
there are dozens of legal cases involving the ECPA, and almost none
involve common carriers. Indeed, it seems that common carriers tend be
careful not to violate the ECPA, though it does apply also to common
carriers.
Senator Leahy goes on in the Sept 19th, 1985 letter to say:
======
"The Electronic Communications Privacy Act of 1985 contains a
number of important changes:
-- The Act amends Title III of the Omnibus Crime Control and Safe
Streets Act of 1968--the federal wiretap law.
-- Definitions contained in Title III are amended to broaden
protection from only voice trnasmissions to all electronic communications
including data and video carried on non-public systems. The requirement
that to fall within the coverage of Title III an interception has to be by
"aural acquistion", is dropped.
[...]
It is no solution to say that anybody concerned about the privacy
of these communciations can pay for security by paying for encryption.
Encryption can be broken. But more importantly, the law must
protect private communications from interception by an eavesdropper,
whether the eavesdropper is a corporate spy, police officer without
probable cause, or just a plain snoop."
======
Radicals often they try to say that they can do anything they want to
"protect their rights". That is totally false. House Report 99-647 @67
notes:
"The terms 'rights' and 'property' here refer to such rights as
intellectual property rights, the right to be free from the theft of
services. The term is not intended to be read as to permit a provider to
contract with an unauthorized party an obligation to divulge all stored
messages, without any notice or conset from the originator of the message,
and then claim that such divulgence is to protect the rights in such a
contract"
Thats pretty clear. It isn't the case that they can do anything they
want.
The radicals often try to misquote Bohack V. City of Reno. They take a
summary statement and leave off the context of the statement. Bohack is a
case of employers recording employees. The context is that the City gave
the officers notice that their messages were recorded, and that they were
not the private property of the officers. Thus, the City can 'do whatever
it wanted with the messages', because it had given notice. This is
consistent with employment law, in which employee's phone converstations
can be recorded, but only after appropriate notice is given. Quite
obviously, the Phone company can't quote such cases to say that they can
record the conversations of arbitrary subscribers. ISPs likewise cannot
access or block the communications of arbitrary subscribers.
This is a quote from a brief in Exactis V. MAPS. I've found it quite
enlightening and succinct.
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The Sherman Act forbids any ?contract, combination . . . or conspiracy, in
restraint of trade or commerce among the several states. 15 U.S.C. 1. The
Sherman Act authorizes liability for and injunctive relief to enjoin group
boycotts or concerted refusals to deal with other economic actors. 15
U.S.C. 16; Northwest Wholesale Stationers, Inc. v. Pacific Stationery and
Printing Co., 472 U.S. 284, 288 (1985). Horizontal boycotts, including
group boycotts, are per se illegal under the Sherman Act when they serve
no pro-competitive rationale and when they involve efforts by one or more
firms to disadvantage market players by either directly denying or
persuading or coercing suppliers or customers to deny relationships the
market players need in the competitive struggle. Id. Two things
characterize a group boycott that is per se illegal: (1) the boycott cuts
off access to a supply, facility, or market necessary for the boycotted
firm to compete; and (2) the refusal to deal is not justified by economic
efficiencies. Id. As long as two or more horizontal competitors
participate in the combination, an injured plaintiff may establish an
antitrust violation even if the conspirators are not located at the same
market level as the plaintiff. Full Draw Productions, Inc. v. Easton
Sports, Inc., 182 F.3d 745, 751 (10th Cir. 1999). Even if the Court
determines that a group boycott is not per se illegal, it may still be
prohibited under the ?rule of reason.? The ?rule of reason? requires the
Court first to determine whether the conduct has a substantially adverse
effect on competition and then to evaluate whether the pro-competitive
virtues of the alleged conduct justify the otherwise anti-competitive
impacts. Law v. NCAA, 139 F.3d 1010, 1017 (10th Cir. 1998).
The Sherman Act was designed to protect against, and indeed enjoin, the
very kind of conduct with which MAPS threatens Exactis. The antitrust laws
were designed to prevent competitors from acting in concert to force a
Hobson?s choice in which either choice threatens the survival of a
business. Blue Cross Blue Shield of Virginia, Inc. v. McCready, 457 U.S.
465, 483, 102 S. Ct. 2540, 2550 (1982). The antitrust laws also provide
that injunctive relief is an appropriate remedy when market actors act in
concert to deny market access. Cargill, Inc. v. Monfort of Colorado,
Inc., 479 U.S. 104, 107 S.Ct. 484 (1986). See also Big Bear Lodging Ass?n
v. Snow Summit, Inc., 182 F.3d 1096, 1103 (9th Cir. 1999) (group boycott
claim made our when ski resort owner, which controlled resort association,
refused to permit any association members from selling discount lift
tickets to non-members). Like the federal antitrust act, the Colorado
Antitrust Act, which contains similar language, prohibits similar conduct.
People v. North Avenue Furniture & Appliance, Inc., 645 P.2d 1291 (Colo.
1982); McCormick v. Bradley, 870 P.2d 599, 603 (Colo. App. 1993).
Violation of the Colorado Consumer Protection Act constitutes prima facie
evidence of a lessening of competition. Colo. Rev. Stat. 6-1- 105(2).
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