Re: [Asrg] definition of spam (was Re: consent expression)

[Troy Rollo <asrg@troy.rollo.name>]

At 15:39 5/03/03 -0500, Kee Hinckley wrote:
> At 1:44 PM -0500 3/5/03, Keith Moore wrote:
> > <issues with the definition of consent deleted>
> Is there any help defining this kind of fuzzy problem in the legal 
> system?  I'm thinking particularly of how "harassment" gets defined in 
> laws.  Does anyone know?
Consent is a fairly mature concept in law. In fact there's an entire book 
on it. In fact there's probably several, but the one I'm thinking of is by 
a NSW judge (Chief Justice in Equity Young, as he is now) who has had very 
enlightening things to say about consent from the bench.

Having consent means that the person has given another permission to do 
something. Consent can only be given, it can't be assumed, although it may 
be capable of being inferred by some other words or action. For example, if 
a girl leans in and puckers her lips, she's probably consenting to be kissed.

Consent can also be "implied" by circumstances, for example, having an 
electronic mailbox accessible via SMTP implies consent to receive personal 
email, because that's the exact thing SMTP was designed for. This implied 
consent is available to everybody until explicitly revoked.

So Keith's concerns about the impact of Chris's definition of consent 
aren't particularly justified if we look at consent as the law defines it, 
since the circumstances he cites as objections are circumstances where 
implied consent already clearly exists.

There are, however, other potential objections, so I won't deny that in 
isolation the definition is problematic, since Chris also mentioned an 
accompanying definition - a definition of spam as being "unsolicited bulk 
email".

If we are saying that consent of the kind Chris described is required for 
"unsolicited bulk email", we have probably narrowed it down to a level that 
is within the realms of agreeability. Happily, you have also narrowed it 
down to the realms where implied consent no longer exists.

You see, consent - however it arises - only goes to the specific type of 
action that would normally be contemplated in the consent. There is implied 
consent for somebody to use your front garden path to gain access to your 
front door to knock on it, but if the path goes by your bedroom window 
there is no implied consent to use the path for the purpose of peering into 
that window at night. In both cases the act of using the path is the same, 
but in one case there is consent, and in the other case the very use of the 
path is outside of the consent.

Similarly, an open shop door implies consent to enter, but the consent does 
not extend to consent to enter for the purpose of theft - a thief is a 
trespasser even though a person who walked in and followed their exact 
trail is not a trespasser because they were within the scope of consent.

So the commonly expressed view in anti-spam circles is:

        Person to person email does not require consent.
        One to many email does require consent.

The view in legal circles is:

        Person to person email has implied consent.
        One to many email requires active consent.

The intent of the variations is identical - it's just a matter of viewing 
the problem from the perspective of technical disciplines on the one hand, 
and the legal discipline on the other.
--
Troy Rollo				Chairman, CAUBE.AU
asrg@troy.rollo.name			Executive Director, iCAUCE

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