Private Property, Free Speech and Spam

As I've written, the fascinating element of the spam problem is the collision between three important rights -- freedom of speech, the right to control private property and the right of privacy.

Which wins? Which is stronger? Can they all win? People differ, and even courts have differed all over the spectrum.

I've written elsewhere on the Internet Cost Contract and the hard problem of having a working internet if you accept the principle that sending small quantities undesirable content over a shared link amounts to misappropriation of computer resources. Either the link is shared (on the I pay for my half and you pay for yours approach) and you don't account for small traffic flows or it isn't shared and you need to work out an alternate system of accounting.

But in this essay, I want to talk about the difference between private action and public action when it comes to speech. It is less than we might first intuit.

Spam regulation by governments is subject to constitutional restrictions like the first amendment and interstate commerce clause. Chances are that these things prohibit the government from enacting most of the spam laws that people have proposed or are proposing. You can find analysis of this on my pages and from others, such as Jan H. Samoriski

So if government is not to act, it must be private action that will stop spam. And private action is not subject to the pesky 1st amendment, and relies mostly on the owner's control of private property.

The internet is almost entirely private property, though some portions of it run on regulated common carrier links. In addition, ISPs, which invite the public to become customers, have various duties because of that invitation. (For example, they can't refuse customers because of their race.)

However, mostly it's private property, and what the owners of the property wish to do, they largely can do.

Not just the law, it's a good idea

It is worth remembering that even for private actors, the 1st amendment and its principles are not just a law, they're a good idea. Devotion to free speech requires a desire, when building systems that are like government to hold them to similar standards of freedom and justice.

We have the right to refuse communication, for example, and an ISP has that right as well -- though fair trade practices may require it to inform parties when it blocks a communication. At the EFF we have issued a strongly worded statement that filtering mail without telling the filtered is a bad idea.

But we must also be aware that we plan for the internet to replace most of the major media that were kept free by the 1st amendment. E-mail has already replaced mail for many applications. Many get their news from the web instead of newspapers and TV. Many make their phone calls over the net. Many reach their communities of like minded people through the net.

We are reaching for a day when there will be no press but the net. It's OK if that net is privately owned, but we who build it must take care in its design so that free speech and a free press are maintained.

In the old world of paper, the government owned the streets by which one might distribute papers, and the tool we used to keep the press free was the first amendment. No private entity had the ability to block a person with a printing press from distributing papers down the public streets. Only the government could, and we forbade it.

The internet has no public streets, there is no communication whatsoever without the use of private property -- without the use of the private property of others, in particular the recipient.

Because of this, as we build the networked world, we are rewriting the first amendment, and we should be sure we rewrite is well. As well or better than the authors of the constitution.

One might argue that as long as it's voluntary, a blacklist doesn't truly censor because you can always bow out. That's true, but we must examine both the practice and the theory. If the blacklister has the power to stop somebody from communicating, does this not need checks and balances as much as the government's power to do so? In the past, blacklists have been used only in small communities. The idea of a global blacklist blocking communication to half the world is an entirely new animal.

Principles of Justice

As we build regulation or governance for this network, we need to seek lessons from the centuries of history from the physical world. One such principle is the presumption of innocence and the strict avoidance of punishing the innocent to get at the guilty.

Sadly, many spam solutions have relied on just that. In many cases, crusaders against spam have overtly declared that their goal is to punish the innocent users of ISPs without approved anti-spam policies to the level where they revolt and force the ISP to come into compliance and stamp out the spammers.

Yet this hardly fits with our society's normal view of jurisprudence, where we would rather let 10 murderers go free rather than punish an innocent person. Taken to hyperbolic extreme, it almost seems as though some anti-spammers would approve of taking the children of spammers hostage until they stop their spamming.

People are attracted to blacklisting approaches because they are simple and relatively easy to implement. Without too much work they became effective.

But when you're regulating communication, and redrafting the 1st amendment, you have a duty to not take the easiest or even the most effective way out. Making a system of regulation and punishment is hard work, unfortunately, but it is hard work we are called to do.

This is what people who truly believe in the principles of free speech embodied in the first amendment can and must do. Even though the letter of the 1st amendment doesn't bind them as private actors. This may not seem fair. Our machines are flooded with spam and we didn't ask for it, but justice is rarely easy. Can we use the fact that sending any traffic on the internet requires the use of the private property of the recipient to create alternate, less open regimes of communication? Yes. Should we is another question. If we see injustice done by private actors we can and should still speak out about it.

In addition, spam is, in the grand scheme of things, a relatively new problem. We're far from having explored all the possible solutions. There are many we haven't tried, and many we haven't even thought of. There are ways to follow the principles of the 1st amendment and minimize or eliminate the collateral damage done to ordinary E-mail by our efforts against spam.

I've outlined some of the steps necessary. First define spam widely enough to fix the problem, but narrowly enough to not include any legitimate or desired e-mail in the mix. Find the true causes of the problem and work with ways to address them. Many suggestions are detailed elsewhere on this site and elsewhere. Avoid divisiveness if possible to focus on the problem of taking back our mailboxes.

Then get to work.