The Substantially Similar Weblog

Professor Lawrence Solum, visiting law professor at the University of San Diego and maintainer of the Legal Theory Blog, mischaracterizes the precautionary principle, responding to Stephen Laniel’s critique of Prof. Solum’s original post on genetically modified foods.

Prof. Solum’s original post suggested that perhaps we should prefer natural foods over genetically modified ones for aesthetic reasons. He also says:

Now, I am not an expert, but after reading several articles and two books on the subject, I became convinced that most of the health and safety arguments against GM foods were without scientific support.

Steve responded:

How about the law of unintended consequences, namely that the unintended consequences of a policy often overwhelm the intended consequences? Combine this with the fact that theres no shortage of food in the world, and we just arent allocating it correctly (and that the U.S. government continues to pay farmers to leave parts of their fields fallow), and basically the question becomes: Why should I invest in this uncertain proposition (GMOs), when the one Im familiar with (unmodified food) seems to do the trick just fine? As far as I understand it, GMOs dont even address any need, in the same way that grafting new roots onto grapes to make them hardier, or other such human interventions do. So the positive consequences of changing to GMOs seem small, and the potential negative consequences are unknown.

Finally, Prof. Solum characterized Steve’s argument:

Laniel’s argument seems to be that GMO’s are risky, but this really isn’t an argument at all.

He goes on to talk about the precautionary principle, following a definition from BioTech InfoNet:

In this form, the precautionary principle can easily swallow itself. The precautionary principle is itself a new method for making social policy that will effect the rate of technological innovation in ways that cannot be predicted. The precautionary principel might lead to disastorous consequences, delaying the introduction of new technologies that would prevent environmental disastors (such as global warming or depletion of the ozone layer) because they could not be proven safe “beyond reasonable doubt.” Can the precautionary principle itself be shown to be safe “beyond reasonable doubt”? Obviously not.

Clearly, this is a straw man argument. (Have you ever noticed that the attack—”this is a straw man argument”—can, itself, be a straw man argument?) Prof. Solum, perhaps understandably, focuses in on the standard of proof proferred in the definition, and thus reads the definition as self-defeating. In fact, the crucial issue is not so much the standard of proof, but rather the burden of proof (discussed more below).

Part of the problem here is that Prof. Solum has used the definition that comes up first in a Google search, which may be a reasonable technique, but is also likely to miss some subtleties. For the record, I prefer this definition, which appeared in Rachel’s Environment & Health Weekly, an excellent publication that provides extensive factual support for its claims. I also think the BioTech InfoNet definition did not intend “beyond a reasonable doubt” literally—it was simply part of an extended analogy to the presumption of innocence in the criminal justice system.

The precautionary principle, as I understand it, applies most strongly to those circumstances where it is very hard to put the genie back in the bottle, and where we don’t yet have sufficient information to make an informed risk assessment. This is precisely the issue with genetically modified organisms. Since they have been released into the natural environment, it will be practically impossible to get rid of them if they prove to have undesirable consequences. The precautionary principle would demand far more extensive “laboratory” testing before turning the entire ecosystem into a laboratory, especially since the primary benefit of the technology is only increased profits to large agricultural conglomerates (and obviously to the biotechnology companies themselves). The Panos Institute report, Food For All, demonstrates why political factors are the primary obstacle to world hunger, and why biotechnology is unlikely to improve the situation, and may even exacerbate it.

The problem of unintended consequences is particularly acute with ecological systems. We’ve seen time and time again that disrupting one element in the food chain can have disasterous results for many species, including ourselves. The introduction of rabbits into Australia is one common example. Thomas Austin introduced 24 wild rabbits into Australia in 1859, and by 1869 it is estimated that over two million rabbits had been destroyed on Austin’s property alone. Rabbits continue to be a major problem in Australia to this day.

The Precautionary Principle in Environmental Science (PDF), a commentary by several academics, set out these key elements of the precautionary principle:

• Taking preventive action in the face of uncertainy
• Shifting the burden of proof to the proponents of an activity
• Exploring a wide range of alternatives to possible harmful actions
• Increasing public participation in decision making

Obviously, it would be possible to adopt these principles without totally paralyzing all innovation. There may be close cases, particularly in the medical arena (a cancer cure, for example, with potentially unknown side effects). But the issue of genetically modified organisms is not one of those cases.

While it’s quite unlikely that genetically modified foods are going to turn any of us who eat them into mutants (I can say this as someone who spent several years splicing genes in the laboratory), the possibility for ecosystem disruption is quite high, or at least quite unknowable at this point. Rather than proceeding with careful controlled testing, we’ve released this organisms into the wild (to some degree, the ease with which GMO’s have been introduced into the ecosystem is the result of regulatory confusion between the EPA, USDA, and FDA).

It is not as if legitimate warnings have not been raised. There have already been several cases of cross-contamination, e.g., with StarLink Corn. An article in the prestigious science journal Nature raised concerns about butterfly mortality from B.t. corn. Certain GMO’s, which produce their own pesticides, are likely to reduce the effectiveness of traditional pesticides (because of increased resistance in the pest population), requiring all farmers to use GMO seeds in order to thwart the newly resistant pests. Since the seeds are patented, this forces farmers to acquire their seeds from a single source (which is bad for a number of reasons). There is also the possibility that modified genes will be transferred to other species. A common GMO (Monsanto’s Roundup Ready Soybeans) is engineered to be herbicide resistant so the crop can be sprayed with a herbicide that will kill everything except the soybeans. What if this herbicide resistance gene is transferred to the weeds themselves? This sort of gene transfer is common between plant species. This article provides many more examples of potential GM risks.

Given these risks, the relative novelty of the technology, and the lack of demonstrable widespread benefit, wouldn’t it make sense to shift the burden of proof to the proponents of genetically modified organisms before deploying them more widely?

Although I’m usually not one to make commercial pitches in this space (links to Powell’s Books and CD Baby in the sidebar notwithstanding), I do want to put in a good word for Neuros Audio.

The Neuros Audio player is one of the newer entrants into the increasingly crowded portable digital music player field. Although their players have a number of spiffy features (including FM broadcasting and recording), they really stand out from this crowd because of their support of open source/free software. They have set up open.neurosaudio.com, a site for community software development and related discussion, run by Emmett Plant, former CEO of the xiph.org foundation, someone I trust to preserve the free software spirit. They are releasing beta firmware for the ogg codec presently, and xiph has just released positron, a free software command line interface to the device.

They’ve even put forth a social contract. Although the document may leave something to be desired, it does manifest a fundamentally different approach to this stuff than the other big players.

The community might take pause at their position on patents:

DI maintains a portfolio of patents on its devices. These patents are an important defense against larger well-funded competitors in the consumer electronics space, but they will never be enforced against the Open Source community or other independent software developers. We hope to show the technology community at large that there is a difference between legitimate use of a patent on a hardware device, and patent abuse. We hope the Open Source community will understand our position, and continue to work with us to bring Open Source and Free Software to the technology industry.

At least they don’t see patents as an unmitigated good, and perhaps are the “least bad” option in this respect. I wonder how binding is their promise to never enforce patents against the Open Source comunnity. It’s a nice gesture, anyway.

So I just ordered the Neuros 128MB (all I could afford, and not even that). Right now there’s a fairly decent discount for the Open Source community (or anyone who goes to that page) which lasts until Thursday, and free shipping until the end of the week.

I’ll report back how it works out.

Orin Hatch, the Utah Senator who crusaded against virtual child pornography, recently linked a porn site from his official webpage. Since it’s been removed from the site, I thought I’d preserve it for the record (Google Cache) here. Just click on “My Utah Search” (and cover your eyes).

I wonder how this happened. Was no one checking the links off of Sen. Hatch’s homepage?

Hatch has come under some fire recently for proposing a “kill switch” on computers to disable alleged copyright infringers.

I’ve been engaging in a lot of structured procrastination lately. Many things pressing, but instead I released salonify as a Debian package; I hope to get it into the main distribution some day.

This blog entry is basically an excuse to refer you all to the “structure procrastination” essay. I recommend it highly.

I really loved this rant by Dave Eggers about criticism. He rages against the whole “selling out” idea. I used to worry about artists selling out. Now I’m with Eggers:

Oh how gloriously comforting, to be able to write someone off.
…
One less thing to think about. Now, how to kill off the rest of our heroes, to better make room for new ones?
…
The only thing worse than this sort of activity is when people, students and teachers alike, run around college campuses calling each other racists and anti-Semites. It’s born of boredom, lassitude. Too cowardly to address problems of substance where such problems actually are, we claw at those close to us. We point to our neighbor, in the khakis and sweater, and cry foul. It’s ridiculous. We find enemies among our peers because we know them better, and their proximity and familiarity means we don’t have to get off the couch to dismantle them.

Update: Steve wrote a counter-rant against Eggers’ rant. I think he (Steve) is wrong, but it really depends on what you think Eggers meant. (I’ll leave the substance of the disagreement ambiguous for the moment).

Once a local Critical Mass group reaches, well, critical mass, there are almost sure to be arrests. The police just don’t know who or what they’re dealing with, feel like they’ve lost control, and things go downhill from there.

This just occurred in Buffalo. Unsurprisingly, the first person arrested was the only African-American participant in the ride, a local college professor. These photos show a fairly brutal treatment of people who were just riding their bikes down the street. The only state law they appear to have violated requires bicyclists to ride two abreast, but this can’t possibly be grounds for mass arrest. Check out all the photos, and judge for yourself.

Eventually, I’m sure things will work themselves out, but only after a fair number of unnecessary casualties. The police in every city that I’m aware of finally realize that there’s little benefit from Mass Arrests, and they end up just looking silly and costing people money.

RIDING AT THEIR OWN RISK; NINE PEOPLE FACE FELONY CHARGES IN WHAT POLICE CALL A RIOT INCITED BY BICYCLISTS WHO ADVOCATE THEIR RIGHT TO SHARE THE ROAD, BUT CYCLISTS SAY POLICE WERE THE INSTIGATORS

MICHAEL BEEBE and VANESSA THOMAS; News Staff Reporters
Buffalo News (New York) June 5, 2003 Thursday

THE DEFENDANTS- five men and four women — range in age from 19 to 49, and are hardly the usual criminal suspects one finds before the bench in City Court.

The nine people, eight of whom are part of a group of 120 or so bicyclists who gathered outside City Hall last Friday afternoon for a monthly ride called Critical Mass, will appear Friday in City Court to face felony charges of inciting a riot on Elmwood Avenue.

The group includes two professors — one who teaches journalism at Buffalo State College, the other an ethics teacher at Canisius College. Two are former school spelling bee champions. One is a woman with two children who stopped her car because she said police were beating a cyclist.

All nine are also accused of a slew of charges that include resisting arrest, using obscenities, disorderly conduct and failing to obey the commands of police officers.

Two are also charged with assaulting a police officer — one officer said he was bitten on the finger, another said he was kicked in the stomach.

The bicyclists deny the accusations. They say some of their members were beaten by police using nightsticks or heavy flashlights. They say they were roughed up, hauled to jail and treated like common criminals.

“This was a police riot, not a bicycle riot,” said their attorney, Mark J. Mahoney, after he examined dozens of photographs of the arrests taken by a half-dozen cyclists. “The police are the ones with the energy. They were the ones going into the crowd.”

Deputy Police Commissioner Mark Blankenberg examined those same photographs. He said they show his officers acted appropriately.

“They’ve got nobody swinging a club,” Blankenberg said of the photographs displayed on a Web site (www.rentaweb.net/bikeride). “To me, it’s bull——. If there was any aggressive action by the police, that would have been the grabber on the Web site. They have everything but.”

A neighborhood resident who witnessed the arrests confirmed that some of those arrested were hit with nightsticks, but said the police acted appropriately.

“They were getting into the face of the police officers,” said Joseph Savioli, a computer sales representative who described himself as a frequent bicyclist. “They got more and more obnoxious. More police came, the police felt they were being threatened, and they did what they had to do.

“I probably saw two to six people getting hit,” he said.

Erie County District Attorney Frank J. Clark and the commander of Buffalo’s internal affairs unit said they will look at how police responded.

“I don’t know enough about what happened here,” Clark said. “I know what the protesters are saying. I know what the police say. I need to talk to as many of them to get a truer picture. After looking at these sort of things over 30 years, I know the truth usually lies somewhere in the middle.”

Police Inspector Patrick G. Stafford, commander of the department’s Professional Standards Division, said his unit is looking at the arrests.

“All those allegations of misconduct by the police will be fully investigated, and a conclusion of the facts will be presented to the commissioner and his staff,” Stafford said.

Clark said his preliminary look shows that felony charges against the bicyclists may not be warranted.

“I’m going to ask that the matters right now be adjourned for a matter of time,” the district attorney said. “I’m not prepared to move to felony hearings right away, nor do I think felony hearings might be the way to handle this.”

Fighting for cyclists’ rights

All this from a bicycle ride that started peacefully, as it has once a month here for the last four years.

The local bicyclists are part of the Critical Mass movement that began in San Francisco in 1992 and has spread to more than 300 cities.

“We aren’t blocking traffic, we are traffic,” Critical Mass in Berkeley, Calif., wrote in a beginner’s guide. “How many times have you had to wait forever to cross a busy dangerous street? For once, bikes are the majority.”

Critical Mass brings controversy wherever it goes because the large groups of cyclists often tie up traffic, run red lights while others guard intersections — a practice called corking — and sometimes irritate other bicyclists who say the group does them no favors by getting motorists mad at all cyclists.

Savioli said besides blocking traffic, few of the cyclists he saw last week wore helmets, some had no shoes on, and others carried beer in their water bottle racks.

In Buffalo, the group meets at 5:30 p.m. on the last Friday of each month in front of City Hall. As a group, they decide which way to go and have biked throughout the city.

It’s an eclectic group. Some wear bicycle helmets and ride expensive bicycles; others come on beat-up hand-me-downs; some ride children’s bikes with streamers on the handlebars.

Michael Niman, a professor of journalism and mass communications at Buffalo State College and one of those arrested Friday, explained misperceptions he said police and others have about Critical Mass in a column he wrote in June 2002 for the alternative weekly Artvoice.

“Police often claim the cyclists are ‘blockading traffic,’ ” Niman wrote. “This is also false. Critical Mass is not about bicyclists ‘blockading’ anything. It’s about cyclists becoming traffic and hence, lawfully filling the streets where they have a legal right to ride — a right that is often denied them by reckless aggressive ignorant automobile drivers.

“Hence,” Niman wrote, “Critical Mass is also about education, as the monthly rides serve to educate drivers and police officers about the rights of bicyclists.”

Blankenberg, the deputy police commissioner, said Niman and Critical Mass need to be educated about the rules of the road as defined by New York’s Vehicle & Traffic Law.

Pictures on the Web site show the Critical Mass group riding five or six abreast on Delaware Avenue on Friday, blocking traffic behind them.

“The law is that no one rides more than two abreast, you stay to the right, and when overtaken by traffic, you must form a single file,” Blankenberg said.

Conflicting accounts

On Friday’s ride, Critical Mass left City Hall, rode north on Delaware Avenue, headed west on Allen Street and then continued north on Elmwood Avenue.

David Hess, who said he is a competitive cyclist, wrote in an e-mail to The Buffalo News that he witnessed Friday’s ride and said those who disrupted traffic were not cycling enthusiasts. When the group went through Allentown, he said, they blocked traffic in both directions.

“The group was a perfect example of why motorists don’t want to share the roads with others,” he said, “and I was disgusted.”

Gerald Bove, a graduate student at the University at Buffalo, was on his first Critical Mass ride last week, near the front of the pack, when a police car came alongside the group on Elmwood Avenue just past North Street.

“They told us we needed to get off the street,” Bove said.

Many in the group said they told the two officers it was illegal to ride on the sidewalk.

The two officers in the police car pulled over the last two cyclists in the group near Summer Street.

Maria Van Wyek-Haney and Matthew Downey, the last two cyclists in the group, were told by the officers — Michael Bauer and Daniel Horan — that they were going to be given traffic tickets for failing to yield to an emergency vehicle.

Bove said he and the rest of the cyclists stopped, and he rode back up the other side of Elmwood. When he got to where the police car was, he got off his bicycle and walked it across the street.

“You come here, you’re getting the next ticket,” he said one of the officers told him. “They gave me a ticket for jaywalking.”

Bove said that as he waited for his ticket, with the bicyclists all now stopped on Elmwood, at least three more police cars suddenly showed up. Later police reports put a total of 28 officers eventually on the scene, led by two lieutenants.

“They got out, they had their batons ready,” Bove said. “People started saying, ‘Geez, why do we need all these police officers for this?’ There weren’t any obscenities that I heard. Some people in the crowd were making oinking noises.”

Pictures taken by the bicyclists show the newly arriving police officers wearing black gloves, holding batons and flashlights.

Bove said police told him they needed to check his identification and told him to get into the police car.

“This black person stepped off the curb and said, ‘Give this guy a break,’ ” Bove said. “They grabbed him, bent him over the car andcuffed him. That’s when things got out of control.”

Heron Simmonds, 33, an adjunct professor of ethics at Canisius, was then arrested. Others said the rest of the group was incensed to see the only black person in the Critical Mass group in handcuffs.

Police accuse Simmonds of resisting arrest and fighting with them, but the pictures on the Web site show Simmonds standing calmly while one officer puts handcuffs on him and another looks off down the street.

As Officer John Santiago led Simmonds to a police car, Niman said he followed at a distance, taking photographs. Niman said he told police he was a credentialed journalist, working for Artvoice.

“The last picture I took was of Heron Simmonds being led away by a police officer,” Niman said. “Within a second or so, I was struck from behind.”

Niman said he was clubbed, thrown to the ground, and said he felt like someone stuck something in his mouth and tried to gag him. Police Officer Robert Johnson accused Niman of biting him on the right index finger and charged him with felony assault.

Officer Horan accused Jonathan Piret, 21, of Lockport, of kicking him in the chest and stomach and charged him with felony assault.

The only noncyclist charged with inciting a riot was Lesley Lannan, 49, who stopped her car as she was driving past, Mahoney said, while Niman was being hit.

“Officer, this is wrong,” she said as she was being arrested. “I wasn’t involved in this. I was just getting a damn pizza.”

Also arrested on the felony charges were Siobhan K. McCollum, 38, of Buffalo; Mary Ann Coyle, 42, of Buffalo; Craig J. Freudenthal, 23, of the Town of Tonawanda; Genevieve Bojado, 20, of Buffalo; and Eric A. Bifaro, 19, of Cheektowaga.

Discussions are urged

Critical Mass riders have also been arrested in other cities, but this is the first time anyone recalls cyclists being charged with inciting a riot.

Jesse Day, executive director of the New York Bicycling Coalition, which he said represents about 100,000 bicyclists in the state through various bicycle clubs and organizations, urges a meeting in Buffalo before the next Critical Mass ride, June 27.

He said after a similar ride brought arrests in New York City two years ago, members of the New York Police Department and Times Up, a group participating in the ride, held a meeting.

“They sat down and worked something out,” he said.

Blankenberg said he is willing to meet with Critical Mass organizers, but those who ride with the group say they have no organizers.

Clark said he doesn’t want to see another round of arrests later this month.

“Regardless of how this situation works out in the criminal justice system, plainly there has to be discussions between two groups to prevent this from happening,” Clark said. “While it’s not my job to stop it, if it happens again I ‘m going to look at this very harshly. Once is enough. On both sides.”

e-mail: mbeebe@buffnews.com and vthomas@buffnews.com

GRAPHIC: JANET HINKEL/BUFFALO IN this photo taken by a member of Critical Mass, police officers arrest bicyclists during a confrontation on Elmwood Avenue on Friday. Attorney Mark J. Mahoney Deputy Police Commissioner Mark Blankenberg Erie County District Attorney Frank J. Clark MICHAEL NIMAN/Buffalo An officer leads away Heron Simmonds on Friday on Elmwood Avenue. Simmonds was accused of resisting arrest and fighting with police, but photos show him being handcuffed and led away by one officer who uses one hand to guide him. This photo was taken by another bicyclist who was later arrested.

The following posting was sent to my school-wide email list, and originally appeared here, on the New England Committee to Defend Palestine email announcement list. I discuss the fallout here.

DEFEND PALESTINE!
Protest the “Boston Celebrates Israel” Festival
Sunday, June 15
Gather at 11 AM – Old Northern Ave. Bridge, Boston

(Atlantic Ave. between Rowe’s Wharf and South Station, by the James Hook Lobster Co.) for a March to the World Trade Center

The protest of “Boston Celebrates Israel” on June 15 represents the third straight year that activists will confront the Zionists on their day of celebration. We demonstrated against Israel Day in 2001 in Brookline. We marched and rallied right next to the Zionists on the Boston Common last year. This year, these celebrants of racism, murder, colonialism, oppression, and genocide have been driven inside, and we will take our protest to their venue at the World Trade Center on the South Boston waterfront.

We protest because Israel has maintained its murderous occupation of Palestine for more than half a century, devastating the Palestinian people. Israeli “independence” has meant misery and deprivation for the indigenous Palestinians whose land was stolen to create the Israeli state.

We are outraged that this public celebration should take place in Boston. We protest the Israeli state, the U.S. government that backs, arms, and controls it to safeguard the profits of the U.S. oil companies, and the violent military occupation of Palestine.

End the occupation of Palestine!
End all U.S. aid to Israel – military, economic, and political!
Human rights for all Palestinians – including the right to resist and the right to return!

Sponsored by the New England Committee to Defend Palestine
www.onepalestine.org
necdp@onepalestine.org

A student recently posted this announcement to the school-wide email list, asking students to join in protesting the annual “Boston Celebrates Israel” event (for Palestinian rights issues). A series of angry responses ensued. One person called for a “unified response” from the Jewish Law Students Association, and another called the message “hate speech” that “shouldn’t be tolerated by our community or administration.” A similar “flame war” already occurred on this same topic on this same list last year.

I wrote the following response to the Jewish Law Students list. It has been edited slightly to remove the identities of the poster of the original message as well as a pro-Israel professor. I am sure these sorts of incidents are being played out all over the country, and many people in the academy have not come to terms with the information environment that results from the ease of reaching a wide audience with a mass email.

I’ve steered clear of this whole discussion, but I am uneasy about the prospect of a “uniform response” from JLSA et al. I could not sign on to any statement condemning this person’s postings, and a unified statement coming from JLSA criticizing this speech would seem, to me, to be misrepresentative of the views of many Jews I know at NUSL.

I consider myself a Zionist. I have lived in Beer Sheva, and have relatives in Tel Aviv and Jerusalem. My father taught at Ben-Gurion University. Like almost any Jew, members of my family perished in the Holocaust. Yet if I had to chose between the positions staked out in e.g., some of Prof. X’s postings and this person’s, I would have to pick the latter, although I won’t go into detail since that’s not the point of this message. (Of course I fully support Prof. X expressing his viewpoint in the ways he does).

It’s quite dangerous (and in my mind, inaccurate) to brand these positngs at hate speech. Even the pseudonymous “John Faggart” postings (attacking same sex marriage rights, etc.) of the last two years are only questionably hate speech. Just because you find speech deeply offensive does not make it hate speech. If we define hate speech based on the subjective effect on the listener, and then sanction such speech, we live in a very limited speech environment indeed.

The rherotic in this person’s emails is quite similar to that targetted against any number of institutions that are viewed as oppressive by some—e.g., the World Bank/IMF, South Africa, the United States, George W. Bush. When these institutions are attacked, it is common to “personalize” the attack—”George W. Bush, how many Iraqi children have you killed today?” In fact, if you look at Supreme Court First Amendment jurisprudence, I suggest that you’ll find this person’s postings would easily fall within speech that warrants the highest level of protection—core political speech.

Just by contrast, I would consider it hate speech for someone to draw Swastikas on lockers of Jews (or anyone); to send out an email: “Jews have no place at NUSL. They are dirty pigs and should be put in gas chambers.” (or substitute Zionists for Jews); or, as is far more common: “Niggers, go back to Africa.”; or, a burning cross in the courtyard (see Virginia v. Black). Many of us would agree that none of speech should be protected. If you compare these examples to this person’s postings, I think you’ll find they come up woefully short of speech that should be punished.

Although NUSL may not be a State Actor and thus directly constrained by the First Amendment, the Academy has traditionally afforded speech greater protection than that provide by the Constitution. Note also 20 USC 1011a:

“It is the sense of Congress that no student attending an institution of higher education on a full- or part-time basis should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under any education program, activity, or division of the institution directly or indirectly receiving financial assistance under this chapter, whether or not such program, activity, or division is sponsored or officially sanctioned by the institution.”

Note also that other States do apply First Amendment-type protections against private actors. For example, the Leonard Law in California bars non-religious private colleges and universities from disciplining students for speech unless the government could prohibit the same speech.

I strongly oppose any request by JLSA for the administration to sanction this person’s postings, and I also believe that such a sanction may be illegal.

Spam is now the biggest tech/society news item. Earthlink won $16.4 million and an injunction in federal court suing a spammer (stories in news.com.com, siliconvalley.com). At the same time, Earthlink is accused of patent infringement for their new challenge-response anti-spam technology (news.com, New York Times). SpamCon has established a legal defense fund for anti-spam groups (news.com story). Oregon is just one of many that states that has recently passed anti-spam legislation (requiring ADV to appear in subject lines for spam). AOL is blocking email that originates from cable modem/DSL dynamic IP addresses, as a kind of “scorched earth” spam prevention technique. Microsoft just announced new anti-spam tools (news.com).

As a side note, Microsoft is charging $21.95 for the anti-spam service. I wonder if this suggests the kind of symbiotic relationship that currently exists between Microsoft, virus writers, virus protection companies (everyone profits) might be extending into new realms. Having a captive audience of millions of “free” Hotmail users, they can make it unbearable to continue to use the service without subscribing to these additional features (more disk space, spam filters). Since Hotmail doesn’t allow you to automatically forward to other accounts, you might just be stuck (of course there are ways around this).

Larry Lessig has dramatically staked his job on a solution which involves establishing a bounty for anyone who tracks down spammers violating the law.

I don’t believe this issue is as pressing as everyone makes it out to be, and I wish Lessig would stake his job on something else.

Usually, you’ll see spam described as an “onslaught” “plague”, “scourge”, etc.. But is it really costing us millions (or billions) of dollars to deal with? My email address has been available on the Internet since at least 1991, and probably longer. I imagine almost every spam database in the world has 10 of my addresses. Yet I only see one or at most two spam emails a day, and always recognize them from their subject line. It takes all of 1-2 seconds to delete them.

For me, SpamAssassin works great. It catches the 100 or so spam messages I receive every day and puts them in a separate folder. Occasionally, I glance in that folder to check for false positives, but at this point it’s been months since I’ve had a single one (once in a while there will be “semi-spam” in the spam folder, for example, offers from my credit card company that I don’t care about but aren’t truly unsolicited). Other tools like Vipul’s Razor use a collaborative approach to filtering (SpamAssassin works in conjunction with Razor). Bogofilter uses a modified Bayesian technique, originally described in Paul Graham’s article A Plan for Spam, to weed out spam based on messages you’ve received. In my experience, any of these tools work better than the latest technology deployed by Microsoft, Yahoo!, or Earthlink. They’re also relatively invisible to the user.

It seems to me that a combination of simple technological measures combined with enforcement of existing anti-fraud laws should really take care of the problem, and it’s not worth all this hand-wringing “what are we going to do about SPAM???” debate. Almost every spam you receive has some way to purchase the advertised item, and even if you can’t track down the sender of the email, you can track down the merchant, if they hope to do any business with you! The States have a well-defined infrastructure in place for dealing with misleading advertising or unfair business practices.

Internet Email has always been easy, flexible, and simple. By enacting a barrage of anti-spam legislation and adopting stupid spam filtering technologies, we’re ruining the simple end-to-end nature of email. We also risk treading on the 1st amendment, as political and other protected speech gets ensnared in the spam net.

I suggest we just keep it simple.