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April 29, 2003
Spam and speech
I have to admit that I don't understand the hysteria about spam. I probably get as much as anyone and it irritates me too--not to mention challenges my manhood on an almost hourly basis (why do they think I need those pills?) I want to stop it and support the many, many efforts to do so. But email is a form of speech and thereby a right and something we should tamper with only with the utmost of caution. So it baffles me that so many people are ready to embrace a state solution and jeopardize speech rights for the sake of what is, in the end, an inconvenience. (Yes, I know spam also costs people money. So does waiting in traffic while Critical Mass rides by. We all pay a cost so that others may be free to speak their mind.) The same people who are fanatical about the evils of the Patriot Act because it expands government's ability to observe our email seem to be more than happy to have the government DICTATE what we can and cannot email in the first place! Now Zoe Lofgren and Larry Lessig want the state to pay people to bounty hunt spammers. This is a vital state interest? It's absolutely stunning to me.
Now I know what you are thinking. This is only for COMMERCIAL emails. And it is only for UNSOLICITED emails. Well that's all well and good, and if there were a perfect way to determine what is spam and what is not, then I'd have less of a problem. But there isn't and never will be (much spam is in the eye of the beholder)--and when we ask the government to decide what is spam and what isn't, we are opening the door infringement of our free speech rights. Do you really want the state to determine whether your email to friends and co-workers asking them to buy a box of your daughter's Girl Scout cookies is spam or not? Hey it's commercial and unsolicited! Perhaps the government will make the right call and not pay a bounty hunter big bucks for narcing on this behavior, but do you really want to cede them this right? For every problem I point out, I'm aware that statists have a fix for how regulation of email in the pursuit of a spam free world will not, unlike virtually all regulation that preceded it, lead to unintended consequences and a crowding out of individual rights conjoined with government expansion into our private lives. But we ought to take a step back and ask ourselves if spam, as nasty as it is, is so bad that we are prepared to ignore the prospect of private solutions and allow governments, backed by the use of deadly force, to tell us what we can and cannot do with our email—our speech.
Let me put this another way, at the risk of hyperbole: Spam may be the cost of freedom. Sorry to be trite, but freedom isn't free and we are all too aware of the sacrifices many have made and are making for the sake of freedom. Spam's a small price to pay to share that burden.
Chris I absolutely agree especially when there are plenty of tools that do allow people to choose what they believe is spam and block it. I find it curious that Lessig could fight so ardently around copyright and yet choose a position on spam that would likely stiffle innovation and eventually our rights.
All of this pre-supposes that spammers are in the US which of course they aren't according to our data a significant amount of them are outside the U.S. I would like to see them try to extradite the CEO of a German ecommerce company for spamming...
First, I got the enlargement--then I needed the Viagra to lift the damn thing. Mostly I want to say that Apple's anti-spam feature get's out most of the riff-raff. Which is to say: I agree with you, Mr Alden.
I do not. The cost of freedom, for God's sake. Mr. Alden, have you ever, ever supported any new government regulation that interfered with the activities of business?
No one wants Spam. It's ugly. We have a government. Why not use government to a socially beneficial end? That's what governments are for?
Please Jason. Say something sensible and I'll bother to take the time to respond. You change the subject by trying to suggest this is about me, not my arguments, and then you ignore my arguments.
Chris, I agree with your comments. Individuals having to deal with spam is a necessary evil for the online freedoms we enjoy. However, pop-ups - in my opinion - are a different matter. Spam you can largely control with blocking software and the power of the almighty delete button. The problem with pop-ups is that many normal websites use this same technology in their architecture, and implementing any kind of controls to halt these annoying push marketing tools can affect your ability to access these legitimate sites.
The government should stop worrying about spammers and do something about pop-ups.
Or not worry about either and concentrate on people breaking actual laws. I don't know - it's just a thought.
Well, try these points. The Constitutional guarantee of free speech was not granted to defend trivial, commercial "speech"--that is, advertising, something that is not arguably speech at all. It was granted to protect religious speech, political speech, and personal expression.
Spammers are getting around all technological solutions to the problem. Their pop-ups and unsolicited email are polluting the Internet, and ruining it for every one, to no particular social or economic end (who clicks through on this stuff? Really? Less than 1 percent?).
As with all issues involving the "commons," society, in the form of its legally constituted government, has every right to ban socially obnoxious, polluting behavior, that benefits no one--no, not even busines as a whole--except for a small commercial class: the spammers themselves.
These points seem tolerably obvious: If I attacked you, Chris, I apologize, but I can only explain your position by attributing an ideological blindnes to you: the resistance to government regulation in any form.
The only thing you have to apologize for is for ignoring my points (did you read my first post??) If my position is the result of a blindness then Karl, Bart, and Christian ought to head straight off to the ophthalmologist! Rather than looking for the deep motivation of my argument, try taking the argument on for a chance. The point is simply, and I mean simply, is that even if you grant that "commercial" speech doesn't deserve the protections of the first amendment how do you get around the difficulty of defining what is and isn't spam? It's now enough to "know it when I see it." I don't trust the state to get it right, or that they won't abuse their power when they get it (as they have done with almost every other power they have granted themselves.)
Finally, you take for granted that centralized, one-size-fits-all solutions actually work better than distributed systems. What folly! What great faith you must have in government that they can actually solve something like spam. There is no precedence for this and plenty to suggest that government does things like this quite badly. And plenty to suggest that private solutions (which are indeed working--ask Karl) will work better.
To Christian's point on pop-ups, this won't surprise Jason but I'm not in favor of state intervention here either. I can choose to avoid sites with pop-ups and so there is recourse. Let sites promote themselves as "pop-up" free if users really want that. But in truth, consumers (and consumer advocates never understand this) have in essence decided that they prefer pop-ups to the alternatives. Would you rather have pop-ups or be required to pay for more of what's out there on the web (or not have it available at all.) There is an opportunity for a feedback loop here--it doesn't need to be regulated. They annoy me too--I get an Orbitz pop-up every time I go to espn.com. But I'd prefer to continue to get espn.com for free.
When you're a hammer everything looks like a nail.
Lessig is a lawyer and he doesn't like spam so the solution should be yet another law. I think he would argue for a balanced approach.
I don't think the govt should be involved at all. Actually I think there was a really good post by a cryptoanarchist/infoanarchists posted to Politech which took the same viewpoint.
I personally think that this is a bad idea. The solution is technical not political.
Lessig doesn't get it. He is a smart guy and I think he is right with the Eldred case. Less govt is a good thing.
Kevin