The Internet Cost Contract

One prime argument used in avoiding free speech questions when dealing with unwanted single E-mails is that since internet E-mail, by its nature, consumes resources on the receiver's machines and networks, it is the use of the receiver's property. When it is bad E-mail, such as unsolicited ads, this becomes abuse of the receiver's property, and some go so far as to call it theft. The argument that Spam is about theft, and not speech is the justification for the claim that free speech principles don't apply.

The Internet Contract

Long ago, E-mail was more commonly done on a pay-to-send basis. Leading systems like MCI Mail had the sender pay, with the receiver reading for free. Online services, like Compuserve, charged users an hourly rate to both send and read E-mail. Such systems are not ripe for abuse, as they don't have cheap bulk mail.

The internet was built with a very different, and revolutionary cost structure. People connected to the internet usually for a flat rate based on the speed of their connection. Usage was not metered. (This was true even in the days of government funding, which involved both grants to sites to pay for their connections, and funding of a backbone.)

This flat rate idea was a marvelous success. People loved it and the older pay-to-send E-mail systems were crushed. In fact, the flat rate billing is the most important factor in the success of the internet. The flat rate allowed people to play. It let them do silly and experimental things, things people would not ever let them do if somebody had to pay for packets. Those silly things became the big applications of the internet today.

The cost structure was simple. I pay for my end, you pay for yours. Each side paid for their end. There was no settlement for packets as one might find on older networks. It didn't matter who initiated the packets or the connection. It didn't matter whose interests were served by the connection. This was also of course true for E-mail, which is just done with a typical internet connection.

Why did people accept this? Because it was felt, correctly, that the traffic of single users would be "too cheap to meter." Of course computers can measure millionths of pennies, so nothing is too cheap for them to meter, but in this case it was the human cost of metering that people wanted to avoid.

People don't like having a meter running. It discourages activity even when it sometimes might end up lowering the cost. Flat rate means that light users subsidize heavier users but nobody minds, because the freedom from worrying about a meter running makes the net a more pleasant place for all.

In the internet contract (I pay for my end, you pay for yours) it was inherent that if you were to look in detail at the traffic, you would be carrying packets and handling traffic you might rather not be carrying. The internet contract is an agreement to not look at the details of low-volume traffic because it's too much hassle to do it. Flat rate makes the net more useful to everybody, even the lower volume users who subsidize those heavier users.

It means you can't complain about the fact that some unwanted traffic with selfish motives came into your system. Like it or not, you've agreed not to. You agreed to when you took advantage of the system, and sent your traffic out, letting the other side pick up the cost of their end.

Who hasn't sent a packet that, under strict analysis, would not be in the interests of, or desired by, the systems who routed it or its final destination? A flame. An unwanted E-mail. A ping. An extra web reload. A USENET posting nobody read. It happens all the time, and we agree it would be insane to worry about it, or to allow a mechanism for people to come looking for redress over misuse at this level.

Bulk Misuse

What the internet cost contract didn't eliminate was the question of bulk misuse. The shared pipes of the internet, and indeed all the shared cost resources are a what economists might call a "commons." Use is permitted but overuse is another matter.

If somebody makes use of the shared cost structure in a way to go way beyond their fair share -- to use it to the point that it interferes with other traffic, or misuses resources in a way that does not match their intended purpose.

If the misuse gets to this level, it is worthy of notice, and systems to discipline such overuse are not inappropriate. Thus unauthorized bulk mail can be "stealing" of resources where unauthorized single mails are not.