...arbitrarily, willy-nilly, with no notice, no disclosure and no
right of appeal by the affected parties-- even those who are innocent, especially when
ISPs block wholesale the email emanating from certain domains or classes of IP addresses
-- and no oversight by third parties. Thus, the ISPs who block have, in a
fairly arbitrary manner, created two separate classes of users -- those who are favored and
those who are not. Since bulk emailers are users too, they are entitled to
certain rights as well as users who are recipients (some users obviously
fall into both categories). Is
there any evidence that Congress or the FCC ever intended ISPs to have such powers?
ISPs seem all too ready to take on the role of judge, jury and
executioner in the name of bandwidth which they claim to own. However, the ISP is merely a
bandwidth reseller or middleman and thus, if there is merit to their claim that they own
the bandwidth, then surely that same logic dictates that the end user also owns the
bandwidth (and may lay claim to the same rights to it as claimed by the ISP, and the end
user's claim must be deemed a superior claim because it is the user who actually utilizes
the bandwidth. In other words, the bandwidth exists solely to serve the purposes
of the end user, not the ISP or the ISP's upstream ISP).
I observe further that the bandwidth itself is carried on the same
telephone lines which carry common carrier phone traffic. Indeed, from the user to the ISP
the bandwidth IS the phone line, and is mixed inextricably with, and is completely
indistinguishable from common carrier phone traffic. Much of the Internet backbone
similarly is owned and operated by common carrier long distance telephone companies.
Therefore, I believe it is a valid to say that bandwidth is common carrier and
ISPs should be designated as common carriers and act accordingly.
Obviously this is not the current prevailing state of FCC or
Congressional regulation. However, the facts argue strenuously toward a practical effect
which boils down to this: the ISP's job is to deliver all of the mail to all of
the people, just as it is the post office's and telephone company's job to
deliver all of their respective message "traffic" to all of the people, and
therefore, the burden should be on the ISP to show why it should not be required
to do the same, in accordance with the same common carrier "hands off" approach.
In my opinion, smart ISPs will act like common carriers and avoid
meddling in the regulation of content by means of blocking or other censoring activities.
Other ISPs will act like private online country clubs, seeking to exclude certain
unfavored classes of users, just as other country clubs have sought to exclude certain
classes. When country clubs did that, of course, it was called discrimination.
When, however, ISPs block email, or when, like AOL, they seek to
connect to the Internet in a one-way fashion, they are re-creating the same
interconnection problems with respect to the Internet that brought state and federal
regulation into being for the phone companies in the early part of this century.
In other words, industry self regulation does not work any better today than it did 100
years ago.
If ISPs are going to take the high road and block spam, why
don't they also volunteer to perform other "noble" public service censoring activities
such as blocking wholesale all the porn web sites and newsgroups, and all other sources of controversial
commercial content? In either case, of course, they are inspecting the content passing
through their service and rendering an editorial judgment about it. They thus appear to
be making the same mistake Prodigy made a few years ago when it exercised some editorial
judgment for some elements of content, but not others, and would up being declared a
publisher and responsible for all content passing through its portals.
I observe that no other communications carrier takes on the
role of law enforcement as the ISPs seem all too willing to do. I observe further
that the implied "bad actor" concept invoked by ISPs with respect to spammers is
not invoked by any other message carrier-- and not even invoked by other "enhanced
telephone service providers." For instance, evidently a drug dealer has more
rights to the use of a beeper (also an "enhanced telephone service") than an
Internet user has to the use of Internet bandwidth.
Even if the phone company knows the beeper customer is engaging in
illegal activity it will not cut off service as long as the bill is being paid. Neither
the beeper company nor the phone company take it upon themselves to monitor or block in
any fashion the use of the drug dealer's beeper. Yet drug dealing is clearly
illegal. What right, then does an ISP have to even think of blocking messages that are
not breaking any law?
The other argument that ISPs put forth is that spam uses too many of
their resources and they cannot keep up with the increase in traffic supposedly (but to my
knowledge never documented) that spam creates. This I find to be what I call the
"crybaby" defense. In other words, woe is me, says the ISP, "I can't keep up with the
demand for my services, therefore, I'm going to reduce the level of service to suit my
level of equipment." (You know, "it's my ball and if you don't play by my
rules, I'm taking it home.")
Yet, were, say, a phone company to claim that, say, teenagers
are talking too much on the phone and putting excess demand on their facilities, or were
it even to say that telemarketers were making too many unsolicited commercial phone calls
and putting a strain on its services, we would have little sympathy. We would expect the
phone company to increase its capacity by whatever means necessary to handle the increased
traffic and to do so in a timely and technically adequate fashion -- sans bellyaching --
or to get out of the phone company business.
I believe the ISP's arguments along this line are without
merit and that the ISP should be held accountable to the same standard as other telephone
service providers -- expand capacity to maintain an acceptable level of service or get out of
the business. If this means that some ISPs are not financially or otherwise able
to stay in business, then so be it. Let them get out or sell out so that those who are
prepared to meet the growing demand can take over.
In other words, the fact that Internet backbone settlement policy is
such that bandwidth is not accounted for in both directions and therefore not paid for
accordingly, is not the fault of the bulk emailer. Thus, this is essentially a pricing
problem for the ISP industry. Better to change the settlement policy and allow for
Internet postage to be paid by the sender than to block email. Better to find a
technical solution to a technical problem -- and a marketing and pricing
solution to a marketing and pricing problem -- than to invoke censorship, social policy and
legislation.
