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Statement of Principles
The following is a statement of principles regarding the regulation (by governments or in some cases through private methods) of E-mail and in particular, bulk E-mail abuse (known as spam.)
E-mail should be the most protected of media
E-mail is on track to becoming the premier method of person to person communications at a distance for many people, supplanting the post office and the telephone in many cases. This trend will continue. As such, E-mail and similar internet technologies deserve the highest levels of protection of freedom of communication. If E-mail fails to be as free as paper mail, significant rights are lost.
The U.S. Supreme court is in agreement, in the recent ACLU v. Reno ("CDA") case.
Abuse of bulk is the central issue with junk E-mail
E-mail is primarily a one to one communication medium. While mailing lists do bulk mail, it is at the request of subscribers. The core of the problem is unwanted bulk mail from strangers, and all efforts should be directed there. (A stranger is a party you've never had wilful personal interaction with.)
Laws are the last resort
The use of direct government regulation of internet traffic should be considered a last resort, only to be considered after all other methods have been tried and failed. Laws also suffer from jurisdictional problems, and can't easily address the fact that all internet phenomenon are global. Only solutions derived within the internet community can address global problems.
Person to Person E-mail should receive no special regulation
Single E-mails, written for and sent to a single person or entity, while of course capable of being annoying and unwanted, will never reach a volume where they present a special problem. The abuse of E-mail requires "mass mailing." As such, all regulations specific to E-mail should leave person to person E-mail unrestricted, or restricted only by rules that apply to all media (such as fraud, harassment, copyright etc.)
In addition, the cost of single E-mails is low and continues to fall. It is well below the threshold of the internet's cost contract, which specifies that each party pays for their "half" of a connection, with no accounting of small volumes of unwanted traffic. As such, unlike unsolicted bulk mail, ordinary single E-mails are not a violation of the private property rights of the recipients.
After we have done the steps we take to stop junk E-mail, ordinary e-mailers should feel no effects on their day to day mailing. No fear that their personally written mails or even bulk mails to friends will fall afoul of any rule. Only senders of unsolicited bulk mail should stand in fear of any rules.
Content-based regulation of E-mail is wrong
Regulations on E-mail based on what the message says (ie. its subject), rather than the way in which it is sent, are inappropriate and probably unconstitutional in many nations, including the USA.
Note that this does not mean that filtering by the recipient based on content is inappropriate. Individuals should have control to filter their mail by topic, keyword, sender or other factors, or contract with others to do it for them.
In addition, users should be as protected from harassement on the internet as they are in other media.
Free communication is the default
The freedom to communicate is the default in a free society. Any regulation of E-mail should leave it open by default. Users may be given the power to, by their explicit choice, control the use of their own mail addresses, but no outsider should place default restrictions on another's mailbox.
Don't punish the innocent to get at the guilty
Many anti-spam crusaders seem not to care how much the ordinary use of E-mail is impinged in the efforts to stop spam. Any just system works very hard to avoid punishment of the innocent when trying to stop abuse. Indeed, just systems tend to let a few of the guilty get away to avoid interfering with the innocent.
As such, anti-spam techniques should avoid blocking mail that is not spam.
Any regulation that stops all unwanted E-mail is a poor idea
No regulation is 100% precise. If the regulation is this good, it is certainly "too good" and interferes with legitimate mail -- and the principle of online free speech -- as well.
Control of E-mail should remain with the individual -- no person's E-mail should be filtered without their knowing it
While it should not be forbidden for ISPs and sites to set E-mail policy for their users, it is preferable that this be something users can set and control for themselves. If ISPs filter or limit the E-mail of their users, there should be full disclosure of this to users, and ideally the power to opt-out. However, sites are private property so it is within their rights to specify and negotiate contractual agreements with their users, and thus to govern themselves. Indeed, sites may view their sitewide E-mail filtering as a feature to be promoted.
Any public system of regulation should require the user to have to knowingly "opt in" to the filtering. Global rules must not filter mail by default, requiring the user to opt out of the filtering.
No person should be made afraid to send legitimate, desired E-mail.
Regulations must create no fear in the senders of legitimate mail that is desired by its recipients. If fear stops an otherwise legitimate message from being sent, the law has gone too far.
Centralized control increases the dangers to free expression
However the internet and E-mail are to be regulated, control should wherever possible be distributed rather than centralized. Centralized control presents a temptation for overcontrol and is a risk to free expression.
System operators should not be liable for the actions of users
When system operators strive to act as communications companies (as opposed to publishers) they should not be held liable for the bad actions of those who use their facilities. Such liability would leave them no choice but to engage in draconian oversight over all their users activities.
U.S. State regulation of E-mail (and other internet traffic) is wrong
Even attempts by states to regulate traffic "to their state" effectively requires all senders of internet traffic to know the jurisdiction of its destination and check if it conforms to the laws of that jurisdiction. However, a large proportion of E-mail and other traffic flows with the sender unaware of the geographic destination, and the burden of checking would be a significant one. As such, state regulations place burdens on traffic entirely outside their state, and violate the U.S. "Commerce Clause."
Even national regulations are problematic in this way -- but other nations can't extradite foreigners for unwitting violation of their E-mail laws. States, on the other hand, can punish parties outside their state if given the power to make such laws.
Mail from known parties is not abuse of E-mail
If the sender is known to the recipient (ie. the recipient has in the past had voluntary personal contact with the sender) then outsiders have no business interfering with any communication. While E-mail between parties who have a relationship can be an abuse of the relationship, it is not abuse of E-mail.
Instead, we should encourage full disclosure by parties that take E-mail addresses and other personal information regarding what they will do with the information -- and compliance with the disclosed principles.
The creation of torts is government regulation
If a law provides individuals the power to sue over the receipt of certain communications, this is still government regulation of those communications. It's probably a better form of that regulation, but should not be mistaken for a non-governmental method. Any law creating the power to sue does so to create a deterrent against the communications in question, and will discourage messages even before they are sent -- and thus before the recipients power to decide whether to sue or not is even relevant.
The ability to send anonymous mail should not be destroyed
Anonymous mail plays valuable roles in society, though it is also of course subject to abuse, particularly by spammers. As much as possible, regulations should not impede the ability to communicate anonymously.
E-mail must be regulated no more than paper mail or the telephone
The standards applied to E-mail must not be more restrictive than those of the media it replaces. This does not mean it is impossible to put limits on unsolicited bulk communication, but rather that if they are created, they must also be fair and constitutional limits for other media as well.
Be true to the design goals of E-mail
We wanted a system that was incredibly cheap. That's a feature, not a bug. We wanted a system where anybody could mail anybody. Where strangers could mail you and they did not have to get your permission first. We wanted an open, peer to peer system that didn't go through central chokepoints. We wanted a system that allowed anonymous participation. These goals are not to be given up lightly.
It's just E-mail folks
As angry as we get over abuse of E-mail, we must remember that it is just E-mail. The fight to stop abuse is worthwhile, but not worth interfering with important principles of freedom of expression, privacy and individual choice over what can or can't be communicated to them.