[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 property.
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 it".) DS