>Date: Fri, 6 Sep 1996 15:10:40 -0400
>From: Jailbait <jailbait @
>To: elbows @
>Subject: FYI: On blocking sites.
>>From list-managers-owner @
COM Fri Sep 6 15:08:15 1996
>From: fwaid @
com (Fred M. Waid)
>To: "'list-managers @
com'" <list-managers @
>Subject: Judge orders online service to stop blocking 'junk' mail
>Date: Fri, 6 Sep 1996 14:43:49 -0400
>Sender: list-managers-owner @
>Below is an article concerned with America Online's decision to block =
>mass "junk" e-mails.
>Before you decide to block access to your lists, you should consider =
>this information and carefully review the final outcome of the pending =
>Regardless of our feelings or the debates in which we engage, we will =
>all have to abide by the decisions of the courts. =20
Both contrary to your assessment of the meaning of the decision, and
contrary to your (apparent) beliefs about the decision, it should not in
fact be either a guideline for how we should behave as RP's for our
given lists or domains, nor should a decision imply that we all need
A service provider, or a list maintainer is the maintainer of a subset of
publishing rights  which are constitutionally protected, as well as
responsible parties in relation to the Electronic Communications Privacy
Act of 1986. Before anyone flames me into the millenium, we have followed
the ECPA since its beginning, and based all of our client privacy policies
1) Define your clients' email to be private property. It IS private property
unless you insist upon monitoring their conversations. If you do
monitor private communications, then cease to do so, and update
your AUP accordingly.
2) Assert the right to enforce compliance to your own AUP (or write a
goddamn AUP if you have not done so).
3) Define in said AUP, as much as possible of your network to be private
property as you can get away with.
If you are but a list maintainer as opposed to an administrator of a site,
encourage your administrator to write a reasonable AUP [2}. If said administrator
is a nincompoop, then either find a new site administrator or charter your
list in no uncertain terms - a moderated list at bare legal minimums affords you
the rights of a publisher (along with the baggage of same) - you certainly
need not publish on the basis of Constitutionality when you are effectively
footing the bill.
For the site administrators out there who will either see this ruling as a justifcation
for entering the spam marketplace, or who feel bewildered study USC 47 sub 22
and draw your own conclusions. If you violate the AUP of another site which
prohibits unsolicited mail you are liable under the same ruling for any damages
which the prosecuting site claims as well as the response of a quick call to the
FBI Computer Crimes Division. It can make your life more difficult than you might imagine.
In short don't take this ruling as being applicable to you until it is proven to
to so be, which is not going to happen any time soon.
If any site administrors would appreciate suggestions on how to implement
the same mail filtering that was applied at AOL (or more severe filtering)
please reply to me directly for a current procmailrc.
Remember legality is a matter of what the public will accept - please write
your congressman or equivalent representative and state your position on
this matter. Always be polite but firm. We are the scientists in this grandest
of all social experiments. We should not expect the uninvolved to see things
from our perspectives.
Disclaimer: I am not a lawyer, nor am I legally approved to give legal
advice, nor is my employer a legal clearinghouse. On the other hand
we have been net.active in the issue of spam for years. All of what I
say above has been argued by an IP (intellectual property) to be correct.
1) USC 47 sub 22 entails that any advertising which passes on the cost of
same to the recipient, or any third party is illegal. This places spamming
under the same restricitions as broadcast FAX.
2) Please see http:.//www.tezcat.com/tezcat-aup.html. We encourage you to
develop you own AUP, and not to copy same (which was not written by
a lawyer) but which was acceptable from an NSFNET perspective (at
such time as the NSFNET existed per se.)
C. Ewen MacMillan <ilixi @