[lug] off topic, spam laws

[Jeffrey Siegal]

Peter Hutnick wrote:
> The issue here is theft, not tresspass.

There is a clear definition that removing items from a retail store
without permission is not allowed.  There is no need for notice because
it is readily understood.  

However, in the case of STMP, it isn't theft because there is no clear
definition of what uses of an SMTP server are allowed and what uses are
not.  If some people are allowed to use the server for some things at
some times (e.g. to send you mail), as is generally understood for a
publically accessible SMTP server, you can't reasonably make the
argument that someone is supposed to read your mind about what uses are
permitted.  If SMTP provided some mechanism by which someone could be
notified of what the requirements are for use, that might be different,
but that doesn't exist.  (Identification banners don't count, by the
way, because it is not reasonable to expect a person to ever see those,
and there is no standard for how a computer might interpret them.)

The situation with open relays is perhaps different, since it is
probably not reasonable for someone to assume they can use your server
as a relay without your permission.  Earlier, I was referring to the
case where the server is being used to send *you* mail.  You are going
to have a very tough time defining some people using your SMTP server to
send you mail as theft and other people doing the exact same thing as
not theft.  It would take a specific law such as the TCPA to do that,
where the legislature finds that such a law advances a legitimate
purpose (regulating interstate commerce in the case of the TCPA).  A
general theft law is never going to cut it.