by Robert Gelfand
American Reporter Correspondent
San Pedro, Calif
June 7, 2004
WHO OWNS YOUR E-MAIL ADDRESS?
LOS ANGELES -- Sometimes it seems that spam-email has joined death and taxes on the list of inevitables. Who controls the use of your email address? A struggle in the small Los Angeles suburb of Mar Vista is exposing some of the issues.
The players in the local conflict include the Mar Vista Community Council (MVCC) and the Westmar Sun.
The Mar Vista Community Council is one of nearly one-hundred newly formed neighborhood councils in the city of Los Angeles. It is part of a new system made possible by a recent amendment to the city charter.
The neighborhood councils are local organizations made up of volunteers. They go through a certification process by a new city agency created for this purpose. Once certified, they are considered to be advisory bodies within the city government.
They are required to communicate their workings as best they can to the districts they serve. To this purpose, they are funded by the city at the rate of $50,000 per year each. They are strongly encouraged to do "outreach" to everyone who lives, works, or owns property in their districts.
Some mail newsletters. (Disclosure: I have been the editor of one such newsletter). Others use telephone trees and community bulletin boards. Nearly all make use of email to some extent.
And as the bard would say, there's the rub.
The opposition force in this little drama is the Westmar Sun, a print and Internet newsletter (www.westmarsun.info) which covers Mar Vista affairs. It has been increasingly preoccupied with the workings of the Mar Vista Community Council of late.
George Garrigues is the publisher of the Westmar Sun. A few weeks ago he demanded that the MVCC turn over its list of email addresses so that he can do his own communicating.
This was apparently a surprise to the elected officers of the MVCC. They thought, as most of us would, that email address lists are private and must be kept so. Even common courtesy would demand as much.
Garrigues countered that neighborhood councils are public bodies and subject to state law that makes their records open to public scrutiny. He insists that the MVCC email address list is a matter of public record and therefore subject to provisions of the California Public Records Act.
The Los Angeles City Attorney office advised the community council that Garrigues has a point. There does not at present seem to be any statutory provision that expressly provides neighborhood council participants with the right of privacy when it comes to email addresses.
It is important to point out that Garrigues and his Internet newsletter is not the issue. Garrigues comes across as thoughtful and knowledgeable. It is the danger of opening email address lists to any and all, with or without ethics, that is at issue here.
The whole story can be read in the form of dueling emails on the Westmar Sun web site.
What we have here in microcosm is the story of a new technology that has revolutionized communication but is showing the strains of its success. In much less than a lifetime we have gone from stamped envelopes to electronic mail. The difference is that junk mail is slow and relatively expensive, whereas email is fast and inexpensive. The spammers can send out hundreds of thousands of unwanted irritations in minutes, and we recipients have little recourse.
For this reason, there is widespread antipathy to anyone who even thinks about sending unsolicited emails of other than a private nature.
Mar Vista residents have the right to say, "I didn't give the MVCC permission to give out my email address, so they shouldn't." Even George Garrigues concedes politely that most of the email subscribers probably did not know that they were subjecting themselves to this possibility.
Rather than turn over the email address list, the MVCC officers have apparently decided, on advice of council, to destroy the whole list rather than make it public. In the future, they will warn everyone who attempts to subscribe that their private information is becoming a part of the public record and will be turned over to anyone who asks for it.
What this story illustrates is that there is a question that nobody seems to have asked, but if answered correctly would make the fight against spam-email much more productive.
The question is this: Who owns your email address?
In other words, is there anyone who has property rights over the use of your email address? Is it you? Is it the domain owner (e.g.: AOL, earthlink) who supplies it to you for a monthly fee? Is there any property right, copyright, right of ownership or privacy right that comes with the use of the email address you pay for?
My contention is that answered correctly, this question could provide the legal basis for a more effective attack on spammers.
Here's how. Suppose I have the right to decide whether the email address I use can be given or sold to somebody, just as a copyright holder controls how his creation can be licensed. This would make it legally impossible for the spam mills to merchandise the lists of email addresses that they offer for sale in hundred-thousand-address blocks. I would never agree to give my address away, and I doubt that the spam mills could get enough other people to give permission to use any but a small fraction of available addresses.
Certainly, they would not have the resources to pay enough in licensing fees to enough email users to provide anything like the address lists they advertise for anywhere near the prices they now offer.
Even if the ownership rights to email addresses are held by the domain owners, the effect is similar. AOL and Earthlink and the Internet cable providers would not license the use of email addresses to spammers and hope to stay in business for long.
It may be different for the businesses that provide free email service, but the public antipathy to spam and the costs to Internet service providers of spam make it unlikely that even these businesses would continue to bite this poisoned apple.
Congress should pass legislation that makes clear the ownership or property rights in an email address. This simple act, if done right, would allow a free market solution to the domestic side of the spam market at least. One can imagine public interest law firms going after spammers based on good old fashioned principles of property and ownership: You take it without my permission, you will be sued.
It's not a panacea. Lots of spam is completely fraudulent, sent out apparently just to harvest email addresses or to get a few suckers to provide credit card information. Overseas hucksters will not be subject to attack in domestic courtrooms. But lots of spam and the spammers who send it would become the targets of that most feared of adversaries, the plaintiffs' attorneys of America.
I can even imagine private foundations set up to sue spammers for email rights infringements. I would certainly pay $10 in dues each year to protect my email address.
It is curious that the spam argument has been concentrated so much on the technical aspects and so little on the basic legal principles. Perhaps that is because the principles are yet to be agreed upon, much less codified by statute.
If even governmental agencies do not owe email subscribers the right to privacy, as apparently they do not in Mar Vista this week, then the legal question is yet to be resolved satisfactorily. Perhaps the state of California will revise and update its Government Code to reflect this new technological quandary. In the meanwhile, we have the privilege of paying for our email service in order to make it possible for the Internet pirates to deluge us with all their unwanted junk mail at next to no cost to themselves. It's time for the legal system to set this right.
The residents of Mar Vista would be gratified.