Slinging Spam - Point/Counterpoint

Deeplink by Annalee Newitz

There have been a lot of interesting responses to our latest white paper on spam. We appreciate the feedback, and in response, we've complied a list of issues you've raised and provided our replies. We hope this helps clarify EFF's position on some of the more tricky questions in this debate.

The Argument Against "Pay to Play"

Some groups and individuals have argued that the best way to prevent spam is essentially to "tax" it through proposals like e-stamps. We believe it's unlikely that this kind of scheme would succeed in preventing any significant amount of spam. But more importantly, we believe that introducing artificial costs into Internet communications would do a lot more damage to the owners of noncommercial email lists than it would to spammers.

Spam is big business. It not only pays, it pays well, with tremendous profit margins for spammers. Placing an artificial cost-burden on sending email might reduce those margins somewhat, but we've yet to see any compelling evidence that it would actually drive any successful spammer out of business, much less affect the wildly successful ones that are the bulk of the problem.

Second, proposals like this miss the central point we're trying to make here -- that noncommerical, grassroots mailing lists, often administered by a single person in his or her spare time, are one of the great things about the Internet.

There has been a lot of heat produced by our discussion of Moveon.org's problems with its mailing lists, but very little light has been shed on the problems smaller, less well-funded groups have been experiencing. Mailing lists like Crypto-Gram, IP, Politech, and TidBits likely would not exist if the list owner was required to pay for each mail sent and received. It should never be the case that if a list-serve is popular and growing, or a list-serve topic sparks an especially lively discussion, the list owner (or any speaker) has to pay more money. More speech should be rewarded, not penalized.

The Argument for Global Standards

Some readers of our white paper have argued that we are imposing a US-centric notion of freedom of expression on an unwilling global community when we say that the problem with spam filtering is that it endangers free speech. But freedom of expression is also part of international law. It's included in the Universal Declaration on Human Rights and the Covenant on Civil and Political Rights, which have been adopted worldwide. There should be no question that freedom of expression is recognized as a basic human right all around the world.

Where the US differs from other countries is at the "margins," not the center, of the free speech issue; for example, we have different standards with regard to hate speech, libel, and pornography. But, again, this does not mean that the international community does not value free expression. It therefore makes no sense for EFF to pretend that protecting legitimate email is important only to US citizens.

The Argument for Freedom of Expression on Private Property

Some critics have noted that we suggest that free speech doctrines ought to inform the discussion about the problems caused by overzealous or poorly implemented anti-spam efforts. These critics claim that EFF doesn't understand the difference between government and private actors when it comes to speech.

As an organization that has devoted 15 years to fighting for freedom of speech, we obviously understand the difference between private and public actors in the law, and that is why you see no legal claims in the paper. But that shouldn't end the matter.

There is no real question that if the government started using current anti-spam mechanisms to decide which of your email messages you should receive and which you should not, with no due process, no method of redress, and no accountability, it would face serious First Amendment challenges. The effect on speech is the same when private parties engage in this kind of behavior. Wanted speech is being blocked from reaching a willing audience, often without that audience's knowledge or consent.

We argue that private actors running mail servers or providing anti-spam tools should care about silencing wanted noncommercial speech as a matter of principle, even if their acts do not create the basis for a First Amendment lawsuit.

Our goal is to have an honest discussion about these collateral effects and to ask the Internet community as a whole if the kind of censorship that we would not tolerate from a government is what we want our ISPs and anti-spam community to engage in on their own. We think that's a fair question.

The Argument for User-Controlled Filtering

Our critics often ask us what kinds of antispam techniques we recommend, since we seem to have negative things to say about the most common systems available.

We recommend user-side filtering using technologies such as SpamAssassin. One of our concerns, however, is that SpamAssassin can be misused (and often is). Despite their usefulness when deployed under ideal conditions, SpamAssassin and other filtering technologies can be used to block email based on the language it contains or the country of origin.

It's important to note that blocking by language or country is not a default setting in SpamAssassin. But that doesn't mean this tool isn't being used that way. Many systems administrators describe routinely blocking email from China and/or Korea using the SpamAssassin point system. This kind of blocking becomes an issue when it's done server-side and users have no control over it. If a user wants to block all mail from China, that's her prerogative. But when a sysadmin decides the question unilaterally, that's a problem.

Ultimately, EFF would like to see users given the right to determine for themselves what constitutes "wanted" and "unwanted" email. Spam is in the eye of the beholder, and the beauty of user-side filtering is that it allows end users control over the process of creating filters so that they can get rid of email they don't want while still receiving what they do.

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Blogging WIPO: Day 3

Deeplink by Cory Doctorow

Today at WIPO saw a flat-out disgraceful cooking of the deliberative process. The administrators of the meeting -- the chair and secretariat -- are pushing hard to make this treaty pass, even if no one wants it to. The solution to the deadlock is "regional meetings" in which countries that oppose the treaty can be isolated and arm-twisted into coming into line, and where few or no public-interest NGOs will be present. Some of the most populous countries in the world -- India and Brazil -- along with many others called for a better approach: any region that wants a meeting can have one, but the real action would be at an "inter-sessional meeting" held in Geneva, with all countries represented. Even though these countries presented a solution that would have given regional meetings to those who wanted them, the chair steadfastly refused to hear from them -- eventually, he used a straw poll to discard their proposal altogether, and then called it "democracy." (Oh, and even more of the public-interest group papers were stolen and trashed today)

[Read the entire post]

Omnibus Intellectual Property Bill Would Harm Public Interest

Deeplink by Wendy Seltzer

The first problem with the omnibus intellectual property bill barreling through Congress's lame duck session this week is figuring out what's in it. That's because the bill is a ragtag collection of old bills from special interest backers who couldn't get them through during Congress's ordinary session. So now, they're trying again, knowing that their bills will face less public scrutiny in the rush to close the session.

But the bills -- bad ideas the first time they were introduced -- don't taste any better together. Among the bills the package probably includes:

• The Piracy Deterrence and Education Act creates a new crime of "offering for distribution," with jail terms up to five years. Since the crime doesn't require proof of willfulness, the standard for other copyright crimes, people could be prosecuted merely for having 1,000 songs in their music folders, without intending that they be redistributed.

• The Family Movie Act exempts from copyright or trademark litigation the skipping of portions of movies -- but leaves makers and users of commercial-skipping technology open to lawsuits like the one that bankrupted ReplayTV.
• The Fraudulent Online Identity Sanctions Act presumes that anyone who has tried to protect his or her privacy by faking the WHOIS info in a domain name registration is willfully infringing copyright or trademark (see letter from ACLU, ALA, CDT, EFF, and PK).
• The PIRATE Act authorizes the Justice Department to step in for entertainment companies to prosecute civil copyright infringement cases.
• An anti-counterfeiting provision would add new dangers to fair use of digital media (see Lessig blog).

Both the substance of these bills and the rushed way they're being re-introduced now are dangerous to the public interest. Public Knowledge has an action alert set up where you can
let your congressional representatives know your concerns.

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WIPO: EFF statement on "limitations and exceptions"

Deeplink by Cory Doctorow

Tomorrow, I'm scheduled to take the floor and give an "intervention" (WIPO-speak for "talking") on a killer proposal from Chile for a harmonized set of limitations and exceptions to benefit the disabled, educators and archivists. What this means is that every country would have a core set of public rights in copyright that you could count on wherever you were. F'rinstance, in the USA, you're allowed to convert a book to Braille without the author's permission, but not so in many other countries. If you pick up a Braille book in New York on your way to Madrid, will you be breaking the law when you land? What if you're exporting them to the Ivory Coast? A unified set of limitations and exceptions (that acted as a minimum set of public rights in every country) would be the first public-interest project undertaken by WIPO -- let's hope they do it!

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Letter to WIPO on stolen EFF documents

Deeplink by Cory Doctorow

Let me try to convey to you the depth of the weirdness that arose when all the public-interest groups' papers were stolen and trashed at WIPO. No one gets into the WIPO building without being accredited and checked over, so this was almost certainly someone who was working on the treaty -- in other words, a political opponent (none of the documents promoting the Broadcast Treaty were touched).

As the Indian delegation put it, WIPO is an organization based on information. For someone who believes in an information-protection instrument like the Broadcast Treaty to sabotage the negotiation by hiding information from the delegates is bizarre. The people who run the table were shocked silly -- this has apparently never happened before at WIPO.

We ended up posting a guard over the table -- thanks to Rufus Pollock from the Campaign for Digital Rights for yeoman duty! -- and rescuing our papers from the trash and from reserve stashes. Unfortuately, we couldn't make any more copies because the UN Secretariat -- who administers logistics -- has announced that as of this meeting, non-governmental organizations (NGOs) can no longer have their materials photocopied by WIPO. Getting copies made means going all the way back into town. This new rule, combined wiht a new procedure that radically cut down on the floor time afforded to NGOs meant that we were largely silenced by the saboteurs. Lucky for us, the delegates from Brazil and India demanded that the Secretariat and Chair take pains to protect our documents and yeild the floor to us.

Times like this, I remember a Gandhi quote that I heard from EFF-founder John Gilmore: "First they ignore you, then they laugh at you, then they fight you, then you win."

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Blogging WIPO, Day 2

Deeplink by Cory Doctorow

Here's today's notes from WIPO -- what a doozy. Luckily, we had the largest-ever coalition of public-interest activsts in the building, which meant that three or four of us could collaborate on the note taking while other lobbied, prepped presentations, and stood guard over the literature table, whence malefactors unknown were regularily scooping up all the public-interest position papers and handouts and thowing them out/hiding them in the toilets. The outcome was great -- I think there's a really good chance that "webcasting" won't make it into the treaty tomorrow, which means that however bad this may be, at least it won't directly touch the Internet.

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Blogging WIPO

Deeplink by Cory Doctorow

I've been at the UN's World Intellectual Property Organization (WIPO) for the past two days, in Geneva, Switzerland, attending the negotiations over the Broadcasting Treaty, which has the power to lock up the public domain and break the web. There's a bunch of us copyfighters here, and we're methodically noting all the events and undertakings as they unfold. It's been full of drama -- all of the handouts set out by the "public interest" groups (e.g., us, civil society coalition, IP Justice, Union for the Public Domain) were repeatedly stolen and pitched into the trashcans in the bathrooms! Click through to get the whole story: the gory transcript of the nations of the world being duped into shafting their citizenry to defend the narrow interests of a few companies.

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EFF Fights for a Better WIPO

Deeplink by Donna Wentworth

For years, progressive groups like the Consumer Project on Technology (CPTech) have struggled to convince the UN's World Intellectual Property Organization (WIPO) to rethink its "IP Uber Alles" philosophy -- that is, the pursuit of maximal intellectual property protection for its own sake, regardless of the human, cultural, or economic impact. The stakes are high. As James Boyle points out in his Manifesto on WIPO and the Future of Intellectual Property, WIPO decisions affect everything from the availability and price of AIDS drugs, to the patterns of international development, to the communications architecture of the Internet.

The major breakthrough came just two months ago, when WIPO decided to adopt the Development Agenda proposed by a number of developing countries and non-government organizations (NGOs). This agenda makes explicit WIPO's responsibility for weighing the impact of its decisions and urges the organization to unlock its considerable potential to help humanity.

While this was an incredibly important, historic first step toward realigning WIPO's mission with the global public interest, the proof is in the pudding. This Wednesday- Friday (Nov. 17-19), EFF will attend the Twelfth Session of the Standing Committee on Copyright and Related Rights to urge WIPO to stick to its guns with regard to the principles outlined in the Development Agenda.

Specifically, we will:

• ask WIPO to apply public-interest considerations in revising the highly controversial Broadcasting Treaty [PDF], which proposes the creation of a new and unnecessary layer of pseudo-copyright protection for broadcasters (see our statement [PDF] for details);
• join other NGOs to propose an alternative draft of the treaty -- one that targets the problem (signal theft) rather than adds new rights; and
• potentially give a speech to advocate filling in the "negative space" at WIPO -- that is, using the organization to establish a miniumum global set of rights for the public as well as for copyright holders.
  

In addition to the above, a group of 20 technology companies will send a letter speaking out against the inclusion of "webcasters" in the Broadcasting Treaty, arguing among other things that a new pseudo-copyright will only slow down adoption and innovation in Internet markets by requiring all content-related businesses to negotiate yet another layer of license agreements before they can offer new products or services to the public.

Finally, EFF's own Cory Doctorow will again live-blog the meeting here at Deep Links, bringing what was once "insider-only" information before the public eye.

For background information on the current negotiations at WIPO, check out:

• Complete running notes from the June WIPO meeting
• EFF press release on the adoption ot the Development Agenda
• EFF's previous statement [PDF] on the Broadcasting Treaty

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Can the Spam, Preserve the Ham

Deeplink by Donna Wentworth

That's the message of EFF's latest white paper, Noncommercial Email Lists: Collateral Damage in the Fight Against Spam. The paper grew out of our effort to help groups like MoveOn.org deliver messages in the face of anti-spam technologies that obstruct, delay, or outright trash email that recipients have specifically requested. Says co-author Cindy Cohn, "If the government treated free speech this poorly, the First Amendment would be in serious trouble."

Thankfully, there's a cure: The paper contains an extensive section on best practices for ISPs and list owners to protect legitimate, noncommercial bulk mail. "Anti-spam technologies protect us against unwanted messages, but we need to do more to ensure that they don't also prevent us from receiving wanted speech," says co-author Annalee Newitz.

Check it out and pass the URL along, especially if you know someone/an organization that could put these guidelines into practice. EFF is asking ISPs and list owners to sign on to the paper to show their support.

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It's the Paper, Stupid

Deeplink by Donna Wentworth

The Associated Press reports that "a hand recount of ballots cast using optical scanning technology gave a Democrat enough extra votes to bump a Republican from victory in a county commissioner's race." According to the article, the scanning system somehow interpreted straight-Democratic Party votes as votes for Libertarians.

The news will no doubt spark a new round of speculation as to whether a patchwork of such seemingly minor malfunctions could likewise have "tipped" the presidential race. At this point, we believe that's unlikely. The problem is that when you use electronic voting machines without a voter-verified paper audit trail (VVPAT), it is impossible to double-check what happened. You can't do a hand recount if there's nothing to recount. You can look at the redundant memories in each machine -- and this should be done in every recount race involving paperless machines -- but that's plainly insufficient.

There are two pieces in today's issue of the NYT that might persuade the casual reader that because there were relatively few malfunctions reported during this election, electronic voting machines in general "work" just fine. But machines without a paper audit trail do not work if you define a working machine as one that 1.) allows the voter to verify his/her choice and 2.) can be audited after the fact.

This isn't about "bloggers v. journalists," "rational people v. conspiracy theorists/tin foil hats," "Democrats v. Republicans," or "red states v. blue states." The integrity of our elections is far too important for that nonsense. If you haven't yet, please stop by EFF's action center and let your representative know you support verifiable elections. The election is over, but it's far from too late to make a difference.

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