North American Network Operators Group

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RE: SORBS Contact

  • From: David Schwartz
  • Date: Mon Aug 14 16:49:23 2006

[combined responses]

> You do realize that when we talk about "sending" data we are using
> language in a very loose way, right?  Data isn't actually sent.  When I
> "send" a packet of data, I still retain that data.  If you lose it you
> have only lost your copy of it, not mine.

	The packet includes its origin, destination, next hop, and like
information. If the copy were identical to the original in all respects, it
would not be a copy. There must be some distinction between the two, and it
is that distinction that makes the "copy" useful. (That's why you made it.)

> Are you one of those people that makes an extra photcopy when you have
> to fax one to someone?

	Why fax something to someone at all then? If the fax really is the same as
the original, why bother faxing? Obviously, there is a difference between
the two copies, and the value of the duplicate is in that difference.

	The fact that the information can change physical form doesn't mean it
isn't a coherent object. For example, my car may exchange electrons with
your sidewalk, but that doesn't make it any less my car. The value of the
car is not in which particular electrons it has (which can change) but in
their arrangement and utility (which does not).

	If I have some information that I want to get to a particular place, and I
make a copy and dispatch it toward its destination, that copy with its
destination information behaves just like my car does. It changes on the
way, but it does not ever become any less my car (or the ultimate
recipient's car) regardless of whose roads it travels over.

> > 	Your argument is similar to a mall that claims they can
> > shoot people who
> It is illegal to shoot people whether they enter your mall or not.

	Precisely. Your obligation not to destroy someone else's data is a basic
tort obligation that applies to how you must treat other people's property,
even if it happens to be on "your network".

> > 	The same would be the case if I used FedEx to return
> > something of yours to
> > you. If they destroyed your property, you would have a claim
> > against them
> > even though you didn't pay them for anything.

> IANAL but I am pretty sure that my claim would be against you, not
> FedEx.  You would have to counter claim against FedEx because you made
> the contract with them.

	You could make a claim against me and I could counter claim against FedEx.
But you could also claim against FedEx directly. They destroyed your

>Whatever you're smoking, you've really gotta share some with the rest of
>us. :P I guarantee you that there is not a single packet that I will route
>which is neither from nor to someone I have a contract with. If you want
>to give away free service to people without contracts that is your right,
>but I sure as hell don't have to.

	Transit networks route many packets that are neither from nor to anyone
they have a contract with. They pass the traffic from aggregators to
aggregators. This is the same as a person who walks from store to store in a
mall even though he has no contract with the stores, the stores have
contracts with the mall.

>Packets are not property, there is no intrinsic value in returning them to
>sender. Plus I guarantee you if you drop off a package with Fedex and
>don't pay for it (thus entering into a contract with them for services),
>they will eventually throw it in the trash rather than deliver it.

	Packets are property. There is no value in returning them to sender but
there is value in delivering them to the recipient. If the lack of return
value is evidence against property, why is the presence of delivery value
not evidence for?

	I don't deny that you can drop a packet on the floor if nobody paid you to
carry it and you did nothing to solicit its presence on your network. That
is not the same as the case where somebody paid you to carry the packet, but
the person who paid you is not the owner of the packet but merely someone
similarly contracted by the owner.

>This is no different from me authorizing Mail Boxes Etc to be my
>proxy for UPS packages, and them being allowed to simply discard
>anything from, say, an ex-wife.   My ex-wife has no claim, in this
>hypothetical, against MBE for tossing my package in the trash,
>because they're acting as my agent.

	You are quite correct *if* they are the agent for the intended recipient.
In the general case, a transit carrier will not be an agent for the intended
recipient and possibly not for the originator either.

>Of course, that only applies if you're dumb enough to answer '250 OK' to
>the '.' after the DATA.  You 5xx that puppy anywhere before that, and you
>haven't taken custody of that data...

	Exactly. I think the mail case is simpler though because it is quite rare
for an email message to wind up in the hands of someone who has no
contractual relationship with either the sender or the recipient. Exceptions
would include things like relay rape where I think it's quite reasonable to
argue that the purely abusive nature of the transaction (and the sender's
specific selection of your relay) justify dropping it on the floor.

	Someone who chose to hand an email to you specifically even though you are
neither the sender nor the recipient and hope that you would deliver it is
not the same as someone who sent a packet to you because you are the route
towards the recipient.

	I suppose another version of the FedEx hypothetical would be if FedEx
advertised that they would carry packages to Denver without fee but then
destroyed half of them. BGP advertisements and DNS MX records are
solicitations for other people's property.

	I would also remind everyone that the interception or diversion of
electronic communications is illegal in the United States, even if you do
not look at the contents. (There are exceptions, of course, but the law
definitely is not "it's your network, do whatever you want with the data on