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Re: Reporting Little Blue Men
From: Howard Goldstein <hgoldste () bbs mpcs com>
Date: Mon, 26 Jan 1998 19:08:01 -0500

Dean Anderson writes:
At 11:42 PM -0500 1/23/98, Howard Goldstein wrote:
In order for there to be a prohibited interception, one must have
acquired the substance of another's communications, i.e., the
"contents."  s2511(1)

This is a good point. I'm not sure I buy it, but it at least is a
reasonable point.  It seems to me that the change of definition was to
loosen the meaning of intercept so that one doesn't have to actually block
to be in violation, rather than to require reading of the contents for
there to be a violation, as you interpret.

I'm not sure I'm understanding what you're getting at here with
respect to a loosening.  Is the discrepancy between the common usage
meaning of the word "intercept" and the printed definition a source of
concern?

Definition sections work something like header file #defines.  One may
replace all instances of the word "intercept" with "googleplex" and
arrive at the same result.

The wiretap act is intended to protect proprietary rights in message
content from another's wrongful taking.  There's no indication
anywhere of intent to gaurantee a level of service for content's
transmission.

I don't think anyone would expect you to guarantee a level of service. But
it is not unreasonable to expect that you are not arbitrarilly and
capriciously discrimminating against people who reasonably expect you to
pass their packets.  This goes far beyond spamming.  Consider what might
happen if it actually is permissible for people to arbitrarilly blackhole
another person or company, at a whim.  Suppose Microsoft decides to take
out Netscape during a dispute. Etc.  Such behavior is already illegal,
given my interpretation.  

I don't disagree with the last sentence, provided the claim of
wrongdoing is based in something other than these statutes...

I find it somewhat reassuring that those desperate spammers who have
litigated related matters haven't attempted recovery through the civil
remedy provided by s2520.  Don't you agree that they would have tried
if the theory had even a tiny bit of merit?

You have to know about it.  

I can't imagine someone making it through the second year conlaw
classes and not butt heads with wiretap act two or three or more
times, but I concede the possiblity.

It appears the spammers aren't very good at
getting good lawyers so far, considering how they phrased their cases so
far. 

I thought counsel for the detestable firm with "C" in its name put
forth an interesting defense (company town).  The failure to prevail
probably speaks more to the lack of merit in his client's position
than it does the competence of the representation.

But the civil damages aren't much, either.





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