Friday, January 09, 2004

Capitalism and the Law: Have You Improperly Used Windows Messenger Service?

If you are a Windows user like me, you've probably received those annoying Windows "Messenger Service" pop-ups that come out of seemingly nowhere. These pop-ups use a part of Microsoft Windows that allows network administrators to interrupt users on their network so that they may send them messages, for example, that say that a server is about to be rebooted.

The trouble came when spammers realized they could use Windows Messenger Service to send pop-up ads to any Windows user connected to the Internet who hadn't set up their Windows firewall. Recipients of the messages have been perplexed by the pop-ups because the pop-ups are not connected to a web browser or to any other application. And adding insult to injury, the ads hawked software that promised to block the very Messenger Service pop-ups the spammers were sending; the spammers set up an extortion scam by hawking a cure to a problem that they alone created.

Now enter our saviors at the FTC. The FTC's sleuths tracked down the source of the Messenger Service spam, a company called D Squared Solutions and its officers Anish Dhingra and Jeffrey Davis. In the FTC's complaint, they charge a violation of the FTC Act, an act that punishes against "unfair" or "deceptive" commercial conduct. The FTC's complaint alleges, among other things, that D Squared "improperly used Windows Messenger Service."

Improperly? That's a curious choice of wording. It seemed D Squared used Messenger Service just fine--albeit in a way that made them an abject public nuisance.

I've always been troubled by the FTC Act's criminalization of "unfair" conduct. There are lots of things that are perceived to be "unfair," but are not initiations of force. And it's precisely the vague wording of the FTC Act that leads us to all the antitrust troubles we face today, where the everyday commercial acts of businessmen trading in the free market are turned into federal crimes.

And it's not as if a law that criminalizes conduct by the standard of "fairness" protects us from any real crime. Consider the following scenario. A man with a bullhorn walks through a quiet neighborhood using his bullhorn to pitch earplugs. If he were charged with a crime, it would not be the unfair commercial use of a bullhorn. He would be charged with disturbing the peace and being a public nuisance.

In this case, D Squared Solutions' sent uninvited messages to Windows users, and its spam was widespread enough to be an affront to the general public. Like the man with the bullhorn, D Squared Solutions can safely be charged with communicating in a manner that is a public nuisance. I hope they get the punishment they deserve.

But why should you care by what standard D Squared Solutions is convicted? The standard by which we judge a criminal or civil charge ought to clearly define the nature of the initiation of force that is held to be illegal. Laws that are explicit and fully reasoned punish wrongdoers and protect the innocent as they each deserve. Vague laws, on the other hand, offer no hope for compliance and are licenses for every kind of injustice and abuse of power. (And for evidence, one need only look so far as the enforcement of the FTC Act for evidence.)

UPDATE: James Taranto reports that a 13 year old student in Texas was suspended for three days for improperly using Windows Messenger Service to say "hey" to his peers on his school network. I hope for his sake the FTC doesn't set its sights on this act of "unfairness."

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