On Thu, 28 Oct 1993 02:36:00 GMT Tansin A. Darcos & Company said:
< stuff deleted>
>Sorry, but you are wrong. First of all, if the site is outside
>the U.S., then the NSF's Acceptable Use Policy doesn't even apply
>to them.
Just because a site is outside the U.S. does not mean that the policy cant
apply to them. If the NSF controls the internet, the obligations
may be due BY CONTRACT. Just because one of the contractees is a
government agency, does not limit the terms of the contract from
reaching outside that government's jurisdiction. I.e. I can write
a contract that says your company will adhere to U.S. wage and labor
laws, even though your company is in a third world country, in order
to do business with me. If halfway through the contract, you decide
not to pay your people enough, I dont have to go to whereever you
are to sue you. I can take legal action right here, right now,
because you have violated the contract. I dont want to describe
all the actions that I could take because that would take too long.
Note that the situation is completely different if it is not physically
or legally possible for you to adhere to the contract.
Second, the acceptable use policy still applies to a message that
comes into the NSF realm. (If I live somewhere where marijuana is
legal, I am not exculpated when I mail it into the U.S.) However,
there are limitations as to what the nsf could do. If the sender
is not on the Internet, but on a connecting network, the NSF does
not have the same contractual legal rights for enforcement. (i.e.
the postal police could not come to another country and arrest me
for violating u.s. laws, without cooperating agreements and often
similar laws). Hell, flood the offender with email.
>Second, more than 1/2 of the Internet is on commercial
>trunks which have no usage restrictions and thus *you can't* have
>them disconnected since their actions are not in violation of the
>contract with their provider.
Please define "commercial trunks". If I understand you correctly,
you mean that these commercial venues provide access to others, and
that just because the commercial venues' customer violates the
nsf policy, the nsf cannot cut off the commercial venue. That is not
always true, depending on the contract and situation. First, it is possible
that the nsf wrote the contract so that the acceptable use applies
to the commercial venue, and the commercial venue is responsible for
the acceptable use clause from all sources coming from him. In such
a case, the nsf could take penalties against the commercial venue.
There would likely be litigation by the end user against the commercial
venue (he was not use-restricted by contract, but was to be given access
by contract). The commercial venue will sue to save face. Second,
the end user could do something to threaten the internet. For example,
he could decide he wanted to use an ip address in use by someone else,
because his contract with the commercial venue didnt specify anything.
Guess what, the nsf could cut them off like that, and get away with it.
(although many sites use intelligent bridges and routers, now)
If you mean that because a site on the internet is a commercial site
that the internet could not stop commercial advertisements, that is
pure bunk. If the contract says no commercial soliciting, that
is not superceded because the organization is a commercial organization.
The commercial organization is selling access, access without
advertising privledges, access limited to specific content.
I have to admit I havent an Internet contract to read, so I do not know
how acceptable use is defined, what the penalties allowed are,
and who is given governing authority. Like any federally backed
institution, you are due a notice and a hearing before any action,
with certain limitations. I dont believe Internet has the same
non-commercial restrictions as Bitnet.
>In fact, you should be very careful about trying to cut someone
>off because you don't like the content of their (legally) sent
>messages; there may be grounds for them to sue you for any number
>of things including restraint of trade, violation of civil
>rights, or other things; even if you don't lose, you will be
>looking at several thousand in legal fees that you will have to
>pay and *won't* be able to collect from them.
Your restaint of trade grounds may be flimsy.
I can filter out all messages from a source to me or someone for
which I have authority over the computing resources. It is not
legal to force me to listen to someones advertisment. (I cannot
stop someone from trying to telemarket to me. I do not have to
listen, however, and I can block all calls from a certain source.)
I do not recall the court case which allows this, but it is recent.
If you continued to advertise to me beyond "acceptable limits" I
can have you estopped. I could also try to sue you for harassment,
but that is often flimsy, and you will typically stop long before that.
I cannot prevent others (outside of my realm) from getting
the messages, however, because that would be restraint of trade.
I cannot filter out messages from that person to a different person,
without that persons consent. In the case of a mailing list,
there is an implied consent to the listowner, of restricting discussion
to the topic and form of the list.
You may have other, better grounds to sue. Generally, you are entitled
to "due process" from any arm of the federal government. this means
that you have to be given reasonable notice and a hearing. If someone
arbitrarily cuts you off, and then says have a nice day, you will have
probably do well in court.
Further, if other people did the same as you, and they did not get
cut off, well, then sue for discrimination. I dont think any company
has been permanently disbarred from any net for the content of message
issue.
>What it comes down to is that unless they are on a system that is
>using an NSF backbone (and the NSF is going to be eliminating
>that funding in a very short period of time) you will have no one
>to go after to demand their disconnection.
>
No. Just because the govenment is abolishing the subsidy for the
wire does not mean the wire or the governing agency is going away.
Just because the organizaiton is not on the backbone does not mean
the NSF does not have jurisdiction.
really, the rest of the discussion is based on what is the internet.
is it a loose collective of sites running tcpip, or is there a
governing assocation ruling by contractual obligation. If it is the
first, where does the fee go to? who decides the ip addresses?
With Bitnet, member sites have a contractual obligation to CREN.
There are "acceptable use" limitations forbidding advertising. No one
has made it clear to me that the same rules prevail on the Internet.
>Subscribe to the Com Priv list and listen to some of them
>(Subscription address is [log in to unmask]). They are
>discussing this issue and others currently.
yeah. this is getting out of hand. What list are we on?
>Another thing. If a company were to create a series of
>advertisements connected with an editorial, and NSF were to
>threaten disconnection, it would be on very weak First Amendment
>grounds, since in effect it would be ordering the discontinuance
>of material based on content.
no, the discontinuance would be based on violation of contract.
While the advertiser could try to invoke the first amendment,
that would be nearly worthless except for the publicity.
>
>In short, what you will have to do is set up a kill file for
>messages from known advertisers and ignore those addresses.
That will probably be half of it. A major fear is that someone
will join a list totally unrelated to his product or service
and use the forum to advertise. The list server would have to
mark a person as ignoreable. That is the other half.
>There is slim grounds to stop advertisement on the Internet now.
>When federal funding ceases, there will be *no* grounds in the
No. The level of federal funding has nothing to do with the contractory
obligations of Internet and its users.
>future, short of some company deciding that it doesn't want the
>money from a commercial site that is connecting to the internet
>in order to post ads. With heavy competition in the commercial
>sector, that's not likely to happen.
Yes, but I would go even further than that. I really dont see any
company getting on the internet just to post obnoxious ads.
You want to reach customers, not alienate them. I
will never purchase a Chrysler, because they ripped me off once,
even though my second cousin is one of their biggest dealers in the
world. Consumers react negatively to certain things, and good
marketers will not want to create a negative image. Chrysler's
theivery has made a permanent negative impression to me. Certainly
there are enough people on this net (hell, on this list), which
will flame someone when they get obnoxious. This flaming should
have an instructive effect on the marketers. I really, really,
doubt that any rational organization will continually advertise
in face of either contractual obligation or common usage not
to advertise inappropriately, such that a governing body would
need to disconnect them. You dont need an MBA to understand this,
You dont need to read any of the host of business books out there,
this isnt brain surgery.
Really, if you think of it that way, then the guy trying to tell
people HOW to advertise on the internet may be doing us all a
favor, if he keeps people from flooding advertisements on every
damn list they can find.
jr
(john riehl)
('Isnt this fun?' - Rich Honn, Attorney)
('This isnt brain surgery, folks' - Ben Enis, Ph.D.)
('Dont get me started' - Deanna Cerfoglio)
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