Great Circle Associates List-Managers
(September 1996)

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Subject: Re: Jodge orders AOL to allow junk email...
From: "Michael C. Berch" <mcb @ postmodern . com>
Organization: Postmodern Consulting, California USA
Date: Sat, 07 Sep 1996 16:49:02 -0700
To: list-managers <list-managers @ greatcircle . com>
References: <2 . 2 . 32 . 19960907224657 . 002c22d0 @ cantec . com>
Reply-to: mcb @ postmodern . com

Dave Bigham wrote:
> [Michael Berch wrote:]
> >I haven't read the court papers in the AOL case, but it sounds like the
> >trial judge, in granting the TRO or preliminary injunction, has badly
> >misunderstood how the Internet works and it looks like he or she has
> >been bamboozled into thinking that AOL's inbound blocking somehow cuts
> >off the spammers' general Internet access.  As a matter of law, AOL
> >should prevail on the merits.
> I can't agree with you in all of the above.  AOL should prevail in this suit
> if, and only if, they have, as part of their subscriber agreement, a section
> which specifically states that they can filter out mail at their whim and
> without prior permission. The spammers are upset and cry "rights
> violation!", but it's the users rights which are being violated - whether
> they want to exercise them or not.  If mail is addressed to me, it should go
> to me and not be subject to removal from the delivery stream before I have
> any say in the matter. If I request that a filter be put in place, fine.

But the suit is not *by* an AOL user -- it's by a third party (the
spammers).  In U.S. common law, there is a very important concept called
"standing": that is, exactly who is privileged to ask a court to attempt
to right a wrong, enforce a contract, etc.  Generally speaking, if A and
B make a contract which is breached by B, C (who has no agreement with
either) has no standing to sue B for the breach.  Only A may do so. 
(The same is true for tort cases, with some exceptions, and there are
special rules for the government [of course :-)] and public policy
issues. But typically a third party to a contract does not have

Since it is the users' contract rights who are (arguably) being
violated, it is up to a user to assert those rights; the spammer company
cannot assert them vicariously.  I can't think of a theory of law under
which AOL owes a duty of performance to the spammer company.

As to whether filtering the mail violates the AOL-user agreement; I
can't comment since I do not have the Terms of Service in front of me.
If they are silent on the subject it could easily be argued either way
and there are good arguments on both sides, but that is beyond the scope
of this discussion. 

> AOL is taking this course in pursuit of filthy lucre - period!

Well, one person's "filthy lucre" is another's "sound business
judgment". Presumably AOL is taking this step for a variety of business
reasons, ranging from the capacity issues you mention, to good public
relations, to wanting to protect the *other* commercial solicitations
that it exposes its members to (and charges advertisers for).  I don't
find any of these to be unacceptable business ethics.

Michael C. Berch
mcb @
 postmodern .
 com / mcb @
 greatcircle .

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