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Re: Monitoring, Flow Stats (Re: spam whore, norcal-systems)

  • From: Dean Robb
  • Date: Wed Feb 03 17:05:41 1999

At 21:43 2/2/99 -0500, you wrote:
>>
>>It would seem to me that blocking UCE to clients who have signed off on our
>>policy of doing so would fall under the auspices of "normal course of his
>>employment while engaged in any activity which is a necessary incident to
>>the rendition of his service or to the protection of the rights or property
>>of the provider of that service".
>
>It has to be a "necessary incident". Routing is an example of something
>thats necessary incident to rendition of service.  Or it could be for the
>protection of rights or property (the oft-used abuse clause).
>
>In this case, it says at the the end that service providers "shall not
>utilize service observing or random monitoring except for mechanical or
>service quality control checks"  

This has been ssoooooooo hashed out here, with the general consensus being
that 18 USC 2511 was inapplicable to blocking email.  Furtherance of this
argument can be found at http://www.jya.com/usam9007.htm#1042 which is the
US Attorney's Manual published by the Dept. of Justice.  A couple of
relevant points:

"Scope of 18 U.S.C 2511 Prohibitions 

Section 2511 of Title 18 prohibits the unauthorized interception,
disclosure, and use of wire, oral, or electronic communications.  The
prohibitions are absolute, subject only to the specific exemptions in Title
III. Consequently, unless an interception is
specifically authorized, it is impermissible and, assuming existence of the
requisite criminal intent, in violation of 18 U.S.C. 2511."

"1053 

Exceptions to the Prohibitions -- Interceptions by Providers of Wire or
Electronic Communications Services 

Section 2511(2)(a)(i) of Title 18 permits employees of providers of wire or
electronic communication services to intercept, disclose or use wire or
electronic communications in the normal course of employment while engaged
in any activity which is
necessarily incident to the rendition of service or to the protection of
the rights or property of the carrier of the communication.  (The 1994 Act
made a "technical correction" that expanded this exception, which applies
to wire or electronic service providers in the normal course of their
business of rendering services or protecting rights or property to include
not only wire communications but also electronic communications. House Rep.
No. 103-827, 103d Cong., 2d Sess. 31 (1994), reprinted in
1994 U.S.Code Cong. & Ad.News 3489, 3511.) Interception, divulgence, or use
for other purposes is not permitted. "


Also listed is the definition of "intercept", which is to acquire the
contents of a communication (blocking/filtering clearly fails here).  We
can also see that monitering to improve service or "...protection of the
rights or property of the carrier..." is specifically permitted.  So, if
you're blocking email because you didn't give the spammer permission to use
your systems, you're legal.  If your tracking packets you didn't authorize
to pass through your system, you're legal.  



Microsoft Windows(tm):  How much hair did you want to tear out today?  

Dean Robb
PC-EASY computer services
(757) 495-EASY [3279]