LIBERTY AND PRIVACY

When we first started the The Outrage Crusade against junk mail (also known as spam), we got a lot of feedback; mostly enthusiastic. But we also received quite a few comments from readers who shared our frustration with spam but did not like the idea of trying to restrict it via legislation.

We're generally sympathetic to those comments, although we disagree. But we wanted to make a point of replying. Civil libertarians are too thoughtful and intelligent to want to apply an idea without thinking it through. So let's discuss whether spam is a legitimate object of First Amendment protection.

Here at the The Outrage freedom of speech is very important to us. After all, a webzine that spends most of its time and energy lambasting government officials and politicians wouldn't last too long in a censored society.

Our point of view is that most laws are destructive and unfair, at worst, and unnecessary at best. But note that we said most, not all. Here at the DO we agree with Thomas Jefferson in thinking that the government that governs least governs best. But we're not anarchists, and we've never believed in no government at all.

We believe in freedom of speech, but we don't believe that we have the right to attack people with reckless disregard for the facts. Thus, we support libel laws. We also feel that people like us who produce intellectual property should benefit from their labor. Thus, we support copyright laws.

Freedom of speech is a legitimate concern. As Oliver Wendell Holmes said "The right to swing my fist ends where the other man's nose begins". Spam is the point at which the freely swinging fist hits our nose. We intend to hit back.

The entire subject of privacy rights will be an ongoing and growing debate, thanks to developments in technology. Devices such as video cameras and audio recorders are shrinking in size and price while expanding in power and accuracy. This means that the opportunities to record and re-broadcast the activities of others is growing dramatically.

One innocuous example is a new device which monitors restaurant employees to make sure they've washed their hands after using the bathroom. Hygiene Guard monitors employees in the rest rooms, and electronically detects whether they wash their hands. Hygiene Guard may or may not be a good idea, but our point is that spam is part of the first wave of what may be a growing invasion of privacy.

As we debate spam in particular, and privacy rights in general, here are some interesting questions to ask yourself:

• Let's say you went down to a pier in your home town of San Francisco. You were looking for a little peace and quiet. Along comes Jason Gorski, aka the Fogmaster. Gorski likes to play with foghorns, the way that some people like to play electric guitar. But foghorns are a lot louder, especially when used with the diesel powered air compressor that the Fogmaster favors.

  In fact, the foghorns are so loud that Gorski has to wear protective clothing covering his entire body when he gives a "concert." The only problem with his concerts is that he plays in venues to which he has not been invited. How would you feel about the sonic shock waves which Gorski produces, as you stroll along the beach? Free speech or public nuisance?

• Spammed e-mail is a way of getting someone's attention at little or no cost. If someone you don't know has the right to send you e-mail, do they also have the right to pull up outside your house and honk their car horn until you pay attention to them?

• Would you object if someone took a secret video recording of you in your most intimate physical moments -- say, in the bedroom or bathroom? What if they broadcast the recording over the Net? Mainstream retailers such as the Sharper Image are now selling devices that make such secret recording and videotaping easy and inexpensive.

  This is no idle danger. On September 18, the Miami Herald published an article critical of television evangelist Pat Robertson. The article was completely based on a secret tape recording of a speech Robertson had made to a small group of supporters. The speech was clandestinely recorded, and given to the Herald by a group calling themselves Americans United for Separation of Church and State. Should a tape made without the consent of the speaker be subject to First Amendment protection?

• Would you object if you were sitting in a restaurant and a stranger came up to you, began talking, and wouldn't leave? Assuming the stranger had no business on the restaurant's property he could probably be removed for trespassing. Is a spammer trespassing when they send unsolicited mail to your inbox? In the case of the restaurant physical space is involved; in the case of e-mail, cyberspace is involved. Does it make a difference?

• For better of worse, commercial speech in the United States and most of the rest of the world has been restricted for a long time. For instance, an advertiser is generally not allowed to make fraudulent claims. Most spam is of a commercial nature, and most of it makes claims which could easily be considered fraudulent. Should spam be allowed, but have to face the same restrictions as all advertising in other media?

Many civil libertarians argue that technology, not legislation, is the solution to spam. They argue that devices such as spam filtering software is the best approach. We disagree. Why should the recipient bear the cost of protecting themselves from actions to which they have never given their consent?

It's true that we buy alarm systems to prevent people from breaking into our house, but we also make breaking and entering a crime, and punish those who are caught. Only invited guests may enter our house. Why shouldn't it be the same with e-mail? No invitation, no admission. If you force your way in, you're subject to prosecution.