February 24, 2003

Spam-killing and ISP non-liability

[This was something I wrote to send to Dave Farber's list]

Subject: Re: [IP] Have ISP's walked into their own trap?
On Mon, Feb 24, 2003 at 08:12:12AM -0500, a comment was made:
> As ISPs move to fight spam by installing content aware filtering, have
> they cracked open the historical defense that much like common carriers,
> ISPs are not responsible for content in Internet copyright, fraud,
> pornography, and terrorism cases?

Dave, can I point out many obvious rebuttals?

1) If that were so, then ISPs which explicitly market built-incensorware (Surfcontrol/N2H2/Websense/etc.) as a feature of their service would be doing far, far, worse to this defense. I can't recall this ever being an issue.

2) The telephone company is allowed to offer blocking of various phone exchanges (i.e. phone-sex lines) without incurring content-based liability.

3) Similarly, the telephone company is allowed to monitor phone lines for various service-related problems without incurring such liability.

I think the deepest answer, though, is that anti-spam programs are not in fact directed at content _per se_, but the action of unwelcome solicitation. The repetitive content is used as a proxy for that solicitation. But I'd say it's important to keep in mind that the content itself is not the target. None of the programs have the goal of making, say, purchases of "rhymes-with-niagra" to be impossible (even though it sometimes seems that way from the practical effects ...).

A bit more prosaically, I doubt ISPs have any special hatred for merchants of oner-tay artridges-cay, in terms of the product. Rather it's the attempt to sell that product by trespass-to-chattel which is the problem.

Disclaimer: I am not a lawyer.

Seth Finkelstein Consulting Programmer sethf[at-sign]sethf.com http://sethf.com

By Seth Finkelstein | posted in spam | on February 24, 2003 02:54 PM (Infothought permalink) | Followups
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

Subscribe with Bloglines      Subscribe in NewsGator Online  Google Reader or Homepage