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Several years ago, Intel fired an employee named Ken Hamidi, who responded by repeatedly spamming thousands of Intel employees with anti-Intel emails. Intel sued to ban Hamidi from sending bulk email, and won.
Hamidi has nothing, and Intel is a huge corporation, so some people see this as a David vs. Goliath issue, and side with ‘David’. For example, Chronicle columnist Tom Abate wrote in 1998, “Not since David faced Goliath has there been a more unequal contest than that between the bankrupt Hamidi and the $26 billion Intel. And now this corporate giant wants the courts to take away Hamidi’s slingshot.”
Abate continues, “If Intel succeeds in shutting off the flow of e-mail it doesn’t like, it will set a precedent for other companies and other groups to muzzle all manner of annoying electronic communications.”
The way Abate’s argument is phrased, Intel’s suit sounds like a threat to free speech. But this is not a free speech issue at all — it is not about what is said but how the message is delivered. The issue is theft of service. Intel pays for bandwidth and disk space for its mail servers, and therefore has a right to determine how these are used. Sending bulk email (spam) is roughly equivalent to sending paper junk mail postage-due, except that the USPS provides us with a way to avoid paying for snail-mail we don’t want: we can refuse delivery. There is no equivalent for email.
Ryan Waldron wrote an excellent rebuttal to Abate’s article. It’s too good to excerpt, so you’ll have to read the whole thing: Hamidi, Intel, and Spam.
Anyway, this is all old news. Today’s update is that the California state appellate court upheld the lower court’s decision: “Intel is as much entitled to control its e-mail system as it is to guard its factories and hallways.”
Again, self-declared free-speech advocates are alarmed. ACLU attorney Ann Brick is quoted as saying, “This was not a case about protecting a computer system from harm. It was a case about Intel’s use of the courts to silence a speaker it didn’t like.”
Where did she get the idea that email transport is guaranteed? How does it seem right to her that the courts can force Intel to pay to have a third party disrupt Intel’s business, at the discretion of the third party?
The issue was that Access-Inter.net runs an open relay. An open relay is an email server that has no restriction on who can send mail through it. To spammers, finding an open relay is like finding money on the ground. An open relay allows spammers to send email to you but blame it on someone else. The company that runs the open relay then gets blamed, and has to deal with thousands of complaints from spam recipients — and the spammer is rarely even discovered, having already moved on to the next open relay.
In this case, Access-Inter.net’s open relay was discovered by a spam blacklist before it was discovered by spammers. The open relay was added to the blacklist as a preventive measure, on the reasoning that any mail coming from it might be spam. But this prevented some non-spam emails, including Theatre Bay Area’s, from being delivered.
This is unfortunate, but avoidable: there is no reason to run an open relay. Access-Inter.net’s techs were just rushed, lazy, or uninformed (and have since corrected the problem, proving the point that the entire episode could have been avoided).
The spam blacklist in this case is run by an engineer in Southern California. In the sense that he operates a blacklist that is subscribed to by large ISPs, he wields some power — enough to be classified as a ‘Goliath’ by some people, e.g. Chronicle columnist David Lazarus, who accused the engineer of “behaving like a schoolyard bully.”
But what Lazarus does not understand is that it is not the fault of the blacklist that Access-Inter.net got listed. Access-Inter.net was irresponsible in hosting an open relay; the blacklist simply called them on it. That hosting an open relay is dangerous and irresponsible is not news — EFF co-founder John Gilmore was shut down by Verio for the same thing back in March.
But Lazarus seems to think that email transport is some kind of guaranteed mechanism, and that anyone who interferes is breaking the law. In fact, anyone who receives email, or provides transport for it, can refuse some or all email at any time for any reason: if I’m paying for it, I should be able to decline, don’t you think?
