John Gilmore on spam laws and why EFA's position is wrong [sp]

[Declan McCullagh <declan () well com>]

---

To: Declan McCullagh <declan () well com>
cc: spambills () efa org au, gnu () new toad com
Subject: Re: [Politech] Electronic Frontiers Australia on problems with 
anti-spam laws [sp]
Date: Fri, 03 Oct 2003 16:03:06 -0700
From: John Gilmore <gnu () toad com>

I'm glad to see that EFA has noticed that prohibiting the sending of
unsolicited commercial email is censorship.

Unfortunately EFA is still trying to leave a blanket prohibition on
the sending of email messages, while "crafting" a set of loopholes to
that prohibition that would let ordinary people send ordinary email
messages.

This puts the cart before the horse.  The default should be that
sending emails -- commercial, charitable, governmental or otherwise --
should and must be legal.  Just as sending verbal messages in person,
that is, approaching someone to speak, should and must be legal.  In a
particular circumstance (e.g. when someone has harassed you before,
and you've proven this to the satisfaction of a court, and the court
has issued an order to that person), then speech by a particular person
to you may be made illegal.  But any significantly broader prohibition
renders "guarantees" of free speech meaningless.  You can speak all
you want, as long as most Australians don't get annoyed at you, in
which case they'll pass a law against your kind of speech.

(I understand that in Australia there is less freedom of speech than
in America.  But that's no reason to make Australia even less free in
the name of spam-fighting.)

The rest of EFA's recommendations make it clear that they, like so many
others, have lost their bearings.  "When the topic is spam, civil rights
go out the window."  EFA should spend more of its attention on protecting
everyone's right to communicate with everyone else -- and less time on
deciding in detail who "should be permitted" to speak with whom.

The only person who can decide which messages are wanted and which are
unwanted is the recipient.  Both the bill and EFA cite examples in
which recipients would want, or not want, particular messages,
supporting their ideas of how the law should be worded.  But my point
that they are missing is that they have left the recipient out of the
decision.  Under these proposed laws, it is illegal to send certain
messages to someone EVEN IF THE RECIPIENT WISHES TO RECEIVE IT.

So let's include the recipient in the calculation.  Make a law that
says it's illegal to send someone a message if the recipient decides
that they don't wish to receive it.  Of course, this leaves every
message sender wide open to being screwed by any recipient of any
message.  Tenants can make their landlord pay; landlords can make
their tenant pay; politicians can make their voters pay, and vice verse,
whenever they communicate.  It would certainly cut down on communication,
which is what the "anti-spam community" seems to want.

The catch, of course, is that it makes no "justice"; it makes rule by
one party (the recipient).  Shall we make it illegal to send a letter
to someone who does not wish to receive it, too?  How about a
postcard?  A phone call?  Calling out hello to someone?

Citizens want cheap communication; they call their friends, they email
their family and their interest groups; they flood their elected
officials with email or faxes for or against proposals.  They post
notes around the neighborhood for-or-against politicians or issues.
They advertise their own products and services.  They want to be able
to send any message they want, to any people they want.  They just
don't want to receive all the messages that the other six billion
people want to send THEM.  "Free speech for me, not for thee" is
what's going on here.  The entire idea of regulating the sending
of email should be dropped.

        John Gilmore
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