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The Tragedy of No Common Sense


Jonathan Turley, professor of law at George Washington Law School, holds forth on the subject of spam in a recent widely distributed essay.  Constructing his piece around Garrett Hardin‘s classic “Tragedy of the Commons” (a model based on unrestricted access to commonly-held pasture-land which explores the natural tendency of individual actors to exploit to ruination an undefended resource),Turley demonstrates that he just didn’t get the essential lesson of Hardin’s observation, which was that it is best, to the greatest degree possible, not to have a commons.  Consequently, Turley proposed a typically socialist solution to the problem of too much spam-- government takeover of the commons (in this case, the internet) through some regulatory scheme.


We’ve tried this before of course, too many times; those who have paid attention to the actual results while the architects of such schemes were still admiring the nobility of their intentions have noticed that what we end up with is little different than the wild frontier which Hardin observed and about which Turley complains.  The typical “good government” solution only transforms the abusers from whoever gets their cattle to the green first to whoever buys their congressmen first, be it a cattle baron or an Earth First! coalition.  In fact, we are living right now with a perfect example of that solution-- the “opt-out protection” of the Communications Act of 1996, the utter failure of which is allowing the current abuse of spam.  This regulatory scheme was the one promoted by the commercial-interest ‘cattle baron’ lobby during consideration of the act, and was adopted instead of the alternative “opt-in” concept proposed by libertarian defenders of personal privacy.


The proper solution to this problem is a principled application of property rights whereby the rights of ownership in one’s address, the space rented on remote servers, and one’s own computer are recognized, which amounts to the essence, in practical effect, of the “opt-in” approach.  When your rights to these types of property are recognized, anyone who wishes to use them must secure your permission first, just as would anyone wishing to come into your living room and extol the virtues of their wonderful new vacuum cleaner.


Serendipitously, not only do we have a current example of the government regulatory solution to the “tragedy of the commons”, in the opt-out concession to the unsolicited-advertising lobby, by which to be advised; we also have a current example of the opt-in property-rights based approach to virtually the same problem to examine, in the Telephone Consumer Protection Act.  The TCPA provides for a private action to recover up to $1500 per offense for the obnoxious practice of sending unsolicited faxes.  Anyone with a fax machine can attest to the fact that before the courts were forced by this act to acknowledge personal rights of ownership in one’s fax equipment this type of spam was a major problem; after the first one or two judgments against violators upon passage of the TCPA, unsolicited faxes troubled us no more.


Of course an opt-in solution backed by threat of damages would be limited to spammers within the reach of a cooperating court, and this might mean that only 99% of the junk e-mail would be eliminated, but that would be sufficient.  We mustn’t let the perfect be the enemy of the good and forego a mostly effective solution simply because it cannot do 100% of the job.  Mr. Turley points out in his piece that a 98% rejection rate is undaunting to the spammers as the 2% success rate is lucrative enough to satisfy them.  The reverse will be just as true from the perspective of the victims of this trash.


It is undeniable that many interests dread any precedential recognition of property rights in intangibles such as addresses or phone numbers.  It is, after all, an infinitesimally small step from these to more permanent personal identifiers such as names and (in this age of bureaucratic tyranny) numbers, the consequence of which extension is the effective prohibition of the elaborate records about citizens that the aforementioned bureaucrats and their private-sector counterparts love to maintain.  Too bad.  The creation and maintenance of such records serves only interests other than those of their subject all too often, and when or whether such is the case should be that subject’s decision.


Barring a possible exception of criminal records imposed by statute as part of the consequence of certain types of violation, no one should be the unasked object of government scrutiny and notation.  Meaningful respect for the Fourth Amendment’s prohibition on searches and seizures without probable cause surely extends so far, the recent mediocre performance of the courts in this regard notwithstanding.  To collect and maintain a record of a citizen’s movements through, for example, face recognition software or the recording of Social Security number usage, or agency or medical record compilation, is little different from browsing through a personal diary.  Similar practices by private concerns-- such as by way of credit or discount card deployment, or through cookies on the internet-- are suspect, although properly amenable to the mechanisms of contract (leaving aside for the moment the “fineness of the print” and “43 page privacy policy” issues).




           Those who despise limitations on a power structure which they hope or intend to control frequently point out to any who will listen that “It’s a different world” than when the Constitution first spelled out the terms of the lawful interaction between government and citizen.  They mean by this to suggest that those terms are outdated and that, “new problems require new solutions”.  These bromides are disingenuous.  The Constitution addresses the distribution of power, and little more, and that is a matter of the relationships of persons to persons, which has never changed in its essential nature since the first scoundrel fleeced or enslaved the first victim.  In this regard, the digital age is no different than the stone age, and the wisdom of the Founders is just as cogent today as ever it was. 


© Peter E. Hendrickson