Re: Court challenge to AOL junk-mail blocks

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At 12:27 PM 9/7/96 -0700, Declan McCullagh wrote:
>If AOL wants to stop spammers, let them. They have every right to do so as
>long as their agreement with their customers permits it. It's a matter of
>contract law between AOL and its customers and should not involve the
>spammers and a lawsuit brought by the spammers.
>
>It seems as though the judge was snookered by the spammers' claim of U.S. 
>Mail-like service, free speech, blah. The right to free speech does 
>extend to corporations; in that way, it includes the right *not* to speak.
>

Declan raises a good point. But I'm guessing it's a bit more complex than
that.  CyberPromo and AOL lawyers tell me the court slapped down AOL simply
to "keep the status quo." Both sides used those very words, in fact. 

What's more, CyberPromo talks a good game on the First Amendment, but used
computer fraud and unfair competition statutes - not the Bill of Rights - in
its original filing against AOL. So what's going on?

It seems Weiner is  _very_ aware that this case deals with things never
before argued in court. No one has really sorted out just how much e-mail -
if any - an ISP is obligated to carry against its wishes. What Weiner
decides this fall may not set the kind of precendent that the case of the
Pentagon Papers did, but will be important for a while at least. 

Will
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I will of course defer to Will's grasp of the facts, since I haven't been
following this story or interviewing the principals. (Though I have read
the court's opinion and Reid's article in the Philly Inquirer.)

The judge did mention "status quo" in his opinion. I would hope that 
"status quo" would mean the ability of ISPs to offer and enforce whatever 
contracts they want -- including banning incoming spam -- without the 
intervention of the government. Unless, of course, the ISP breaks the 
contract, but in that case the plaintiffs should be the customers, not 
the spammer.

Contrary to what CyberPromo has been telling the press, Internet email is
not the U.S. Postal Service. In fact, the USPS has a rather horrific
monopoly that has given rise to Comstockery in the last century, the
Robert Thomas case more recently, laws giving the USPS the sole right to
insert mail in your mailbox, and las banning private enterprise from
delivering "non-urgent" mail.

That kind of bureaucratic monopolistic foolishness is not what the Net needs.

-Declan



On Sat, 7 Sep 1996, Will Rodger wrote:
> 
> At 12:27 PM 9/7/96 -0700, Declan McCullagh wrote:
> >If AOL wants to stop spammers, let them. They have every right to do so as
> >long as their agreement with their customers permits it. It's a matter of
> >contract law between AOL and its customers and should not involve the
> >spammers and a lawsuit brought by the spammers.
> >
> >It seems as though the judge was snookered by the spammers' claim of U.S. 
> >Mail-like service, free speech, blah. The right to free speech does 
> >extend to corporations; in that way, it includes the right *not* to speak.
> >
> 
> Declan raises a good point. But I'm guessing it's a bit more complex than
> that.  CyberPromo and AOL lawyers tell me the court slapped down AOL simply
> to "keep the status quo." Both sides used those very words, in fact. 
> 
> What's more, CyberPromo talks a good game on the First Amendment, but used
> computer fraud and unfair competition statutes - not the Bill of Rights - in
> its original filing against AOL. So what's going on?
> 
> It seems Weiner is  _very_ aware that this case deals with things never
> before argued in court. No one has really sorted out just how much e-mail -
> if any - an ISP is obligated to carry against its wishes. What Weiner
> decides this fall may not set the kind of precendent that the case of the
> Pentagon Papers did, but will be important for a while at least. 
> 
> Will


// declan@eff.org // I do not represent the EFF // declan@well.com //

> 
> The judge did mention "status quo" in his opinion. I would hope that 
> "status quo" would mean the ability of ISPs to offer and enforce whatever 
> contracts they want -- including banning incoming spam -- without the 
> intervention of the government. Unless, of course, the ISP breaks the 
> contract, but in that case the plaintiffs should be the customers, not 
> the spammer.

Aren't spammers customers, by definition? If so, they have just as much
right to bring suit as any other customer. Less moral justification, yes,
but an equal standing in the law's eyes.

--
I let go of the law, and people become honest / I let go of economics, and
people become prosperous / I let go of religion, and people become serene /
I let go of all desire for the common good, and the good becomes common as
grass.   .oOo.    [Tao Te Ching, Chapter 57, Stephen Mitchell translation]

No. A customer buys service from AOL and in doing so signs a contract 
with the company. AOL and the customer each has certain rights and 
obligations spelled out in the contract.

I confess I don't know if AOL's contract allows them to block spam. But 
in any case, spammers are not customers.

-Declan


CONTRACT - LEGAL DEFINITION

A contract, expressed or implied, is binding when six elements are present:

1.	Parties involved have the capacity to enter into a contract, i.e. 
mental capacity and requisite age, or the authority to obligate the 
institution.

2.	The contract must be based on an offer.

3.	The offer must be accepted (acceptance by a written or oral 
promise - expressed acceptance, or by performance of the task in question 
implied acceptance.

4.	The offer and acceptance must be mutual.  The key here is proof 
of a "meeting of the minds" on terms and nature of the promise.

5.	There must be performance in order for one or both parties to be 
bound by the mutually agreed terms of the contract.  (An institution 
would not be obligated to pay until the contractor performed services 
agreed upon).

6.	The contract must be for a legal purpose or it will not be binding.




On Sun, 8 Sep 1996, Damaged Justice wrote:

> > 
> > The judge did mention "status quo" in his opinion. I would hope that 
> > "status quo" would mean the ability of ISPs to offer and enforce whatever 
> > contracts they want -- including banning incoming spam -- without the 
> > intervention of the government. Unless, of course, the ISP breaks the 
> > contract, but in that case the plaintiffs should be the customers, not 
> > the spammer.
> 
> Aren't spammers customers, by definition? If so, they have just as much
> right to bring suit as any other customer. Less moral justification, yes,
> but an equal standing in the law's eyes.
> 
> --
> I let go of the law, and people become honest / I let go of economics, and
> people become prosperous / I let go of religion, and people become serene /
> I let go of all desire for the common good, and the good becomes common as
> grass.   .oOo.    [Tao Te Ching, Chapter 57, Stephen Mitchell translation]
> 


// declan@eff.org // I do not represent the EFF // declan@well.com //

> >It seems as though the judge was snookered by the spammers' claim of U.S. 
> >Mail-like service, free speech, blah. The right to free speech does 
> >extend to corporations; in that way, it includes the right *not* to speak.
> 
> Declan raises a good point. But I'm guessing it's a bit more complex than
> that.  CyberPromo and AOL lawyers tell me the court slapped down AOL simply
> to "keep the status quo." Both sides used those very words, in fact. 
> 
> What's more, CyberPromo talks a good game on the First Amendment, but used
> computer fraud and unfair competition statutes - not the Bill of Rights - in
> its original filing against AOL. So what's going on?

It may be because until the 14th amendment incorporated the BoR against
the states, only individuals enjoyed its protections -- the Slaughterhouse
cases extended the BoR to corporations. Or it may just be that CyberPromo
knew they probably didn't have a leg to stand on when it came to the BoR,
and decided to try a safer tack.

> It seems Weiner is  _very_ aware that this case deals with things never
> before argued in court. No one has really sorted out just how much e-mail -
> if any - an ISP is obligated to carry against its wishes. What Weiner
> decides this fall may not set the kind of precendent that the case of the
> Pentagon Papers did, but will be important for a while at least. 

Agreed. Regardless of the outcome, this is a case to watch.

--
http://yakko.cs.wmich.edu/~frogfarm ...for the best in unapproved information
      Hey, Bill Clinton: You suck, and those boys died! I hope you die!
 I feel a groove comin' on             $              Freedom...yeah, right.