John Levine wrote:
The issue is that an MTA operated by an ISP is a telecommunications
provider and subject to the telecommunication secrecy requirements
based on EU directive 2002/58/EC.
By that theory, spam filtering would be illegal, too, yet all the
German ISPs I know manage to do it.
I agree with Dave Crocker, that discussing legal issues on IETF mailing
lists usually doesn't work well at all. I would really prefer to stop
this particular sub-discussion here.
The problem with your "by that theory" is that this legal theory doesn't
work the way you think it does.
An anti-spam filtering scheme that happens before right before an EMail
is delivered into a personal mailbox, and which happens on a purely
opt-in basis by each individual EMail receipient is compatible with
the EU laws.
The EMail recipient as specified by the EMail sender is a rightful
participant of the communication, and the processing happens
"at the communication endpoint", and not "in transit".
The receipient is allowed to decide which data to "receive" and
which data to ignore or delete, and the receipient is also allowed
to voluntarily(!!) outsource spam filtering or pre-sorting to
his Mail provider.
Maybe a brief description of a decision from the German Federal Labour court
from 2009 helps understanding (1 AZR 515/08 from 20-Jan-2009).
A labour union sent (unsolicited) EMail advertisements to employees
at their work Email accounts, and the employer sued them to stop
sending such EMails to work email accounts of employees.
The German Federal Court (the highest appelate court on that matter)
ruled, that the employer must tolerate such EMails. Only employees
themselves, individually and voluntarily, can send "opt-out" requests
for such EMails to unions, which the union will then have to respect.
Since labour unions are privileged by the german constitution, they
even enjoy a "cold call" privilege that is an exception to the cold
call prohibition for other businesses.
If an employer would try to filter out such union Emails by technical
means, it will be a criminal offense, and no amount of contracts and
contract clauses can make such action non-criminal.
-Martin