[KLUG Advocacy] Re: [KLUG Members] Fwd: FC: City of Battle Creek wants to imprison an anti-spam activist

[advocacy@kalamazoolinux.org]

>* bob@acm.org (bob@acm.org) wrote:
>> But a mail server isn't a case of trespass waiting to happen.
>> The presumption here is that you can use the server to pass mail
>> on to intended recipents that you believe are going to get your
>> messages. There are laws on the books that you're violating by 
>> "abusing" that server, but failure in normal use is not considered
>> abuse.
>So, what he was doing was normal use?
Beats the heck ouuta me! I don't know what he was sending. However, I
wrote the above in order to frame the discussion, provide some background.
I will read the article before my next posting so I can comment on this
specific instance. 

>I'm not familiar with what he was sending to the mail servers to test 
>them. My guess is that it was far from "normal use" otherwise this problem 
>would have shown itself before now.
I don't know what you're guessing at, but there are analogous situations.
Fpr example, a mechanic can drive your car in order to test out how it is 
working. Certainly he must operate it in a lawful and safe manner, and the
purpose of his driving, while not intended to actually get anywhere, is to 
diagnose a problem. Similarly, a case can be made that diagnostic messages,
very much the same in nature and frequency to ordinary e-mail traffic, are
not violations of any law, but are sent to prove that the server is operat-
ing normally, and if not, then the tests (like the listening mechanic) can
be shown to have diagnostic value.

>I'm not familiar with his procedures. What prompted him to check their
>server?  Did it have to be submitted to a queue?
Good questions, in general something whose answers would be used to show 
intent. Doesn't the article discuss this?

It is interesting to note that ORDB obtains permission before they
run even the most benign tests on a mailserver. I'll just bet they
have had legal advice on this, and they were advised to arrange things
so that they could prove benign intent, and maybe even prior, informed
consent before running their tests.  
							Regards,
							---> RGB <---