Judge Deems Washington Anti-Spam Law Unconstitutional

ThatGuyAZ writes "A King County (Wash.) Superior Court Judge threw out a lawsuit under the tough Washington Anti-Spam law, calling the law "unduly restrictive and burdensome" in limiting interstate commerce. While the state can appeal this low-level ruling, this is definitely the opening shot in the coming legal battle over state attempts to regulate spam. "

Comments

Does anybody else see the inconsistency?

[Amphigory]

The "slashdot position" is that a little bit of censorship is like being a little bit pregnant. Yet the "slashdoterotti" are delighted to have censorship for spammers. Why? Spammers annoy them, porn doesn't.

The bottom line is that everyone wants to censor -- it's just a question of when. Animal farm, anyone?

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Re:Spam is really not all that much

[Tet]

I have a little button on my heyboard that corresponds to a function known as a "delete message" function that really works wonders.

That's nice for you. However, before you can get to that stage, you have to download the message. Those of us in the UK (and, in fact, most of Europe) don't have free local calls. The upshot is, that to download a 2.5MB spam (yes, I've been spammed with PDF product catalogues this size before) over my modem costs me the equivalent of about US$2.00. Now if someone shoved some junk mail through your door with a bill for $2.00 that you had no choice but to pay, would you complain? No? Then please send me your address, I've got a once in a lifetime opportunity for you...

Re:Spam's not bad.

[Tackhead]

> Your servers may be private property. Maybe they shouldn't be.
> OR think of them as real life mailboxes. They're on your property, but everyone is welcome to send stuff to you.

You Just Don't Get It.

My servers are private property. I bought them. I own. They are mine because of that. You're quite free to tell me that what I've paid for "shouldn't be" mine, but I'm also quite free to call someone who wants to take from me what is mine, a "thief".

Your analogy with post office mailboxes is deeply flawed. My snail-mailbox is NOT mine. It resides on my property, but only the US Post Office is allowed to place things into it. If I tamper with someone else's snail-mail, I'm not only wronging them, but am breaking a federal law because the US Postal Service has a monopoly on the delivery of snail-mail to snail-mailboxes.

Unlike my snail-mailbox - owned by the USPS and the USPS having the obligation to put things that they've been paid to deliver whether I want those things or not - my /var/mail spool IS mine, and you may not have it.

I don't even have to give you a reason why you can't have it. The fact that it's my property is enough.

Finally, "submitting your name to the DMA" is laughably ineffective. DMA membership costs money. The vast majority of spammers have no reason to join the DMA, nor to abide by its practices. Particularly when the overwhelming majority (>95% by my personal 12-megabyte archive of spam) is for offers that are fraudulent.

You also wrote:
> they [spammers] need to be forced into compliance with some standards.

And what do you think a law telling them "you may not steal other people's time and diskspace, and doing so with fraudulent headers is especially bad, and doing so for the purposes of committing fraud is even worse" is? That law is a standard - a standard approved of by the vast majority of people in WA state - and it says "Theft is wrong. You may not do it."

Your "standard" of opt-out means more people get free reign to steal my resources. Until you're paying for those resources (making them your resources, not mine), may I cordially invite you to go fsck yourself? (Actually, just go fsck yourself. I don't have be cordial to thieves.)

My "standard" means thieves go to jail or end up on the wrong end of collection agencies. Stay the fsck off of my servers or expect punishment.

Anyone who's researchied this issue knows we've tried telling spammers to "be nice". For four years. The fact is, spam is theft, and telling thieves to "be nice when you steal" does nothing to fix the underlying problem. They're still punk spamming thieves.

And they'll continue to get their accounts whacked every time they spam me.

And when there's a federal law allowing for a right of private action in an amount ($500 or higher) sufficient to justify placing claims against spammers, I'll send demand letters to every fscking one of them.

oh, god, you are so wrong

[legLess]

Spam is "all that much." You're making the mistake of thinking that because something doesn't hurt you very much it must not be a problem for anyone else, either. This is very dangerous and sadly short-sighted.

Spam costs my company money in the form of bandwidth and employee time (most notably, my time). World-wide, spam clogs data line and slows traffic, clogs storage and makes some news groups useless while making messages expire faster on others. Spam makes the entire Internet slower and more expensive. Spam makes people afraid to give out their e-mail address, thus hurting e-commerce and legitimate information exchanges.

Spam is a 180-degree reversal of snail-mail direct-marketing, where the transaction cost is paid by the sender. With electronic spam, the sender typically has very low costs; the hapless receivers pick up the tab for him.

Spam should be exactly as illegal as a DoS attack, and there are simple, credible arguments comparing the two.

Re:Spam is really not all that much

[Jonathan C. Patschke]

Don't think of it in terms of the consumer (who is merely annoyed and in convenienced (as if that isn't enough)); think of it from the ISP's point of view. The anti-spam laws are an application of the none-one-infinite rule. That rule basically states that in order to be fair and sensible, you have to do one of the following:

• Never allow something (ex: drunk driving)
• Never allow it, except in a particular circumstance (ex: calling 911 to report a fire--you're only supposed to do that when there is a fire)
• Always allow it, from anyone, under any circumstances (within reason--you can't eat a hot dog in a ballpark if you haven't paid for a ticket to a game).

Now, let's look at how this can be applied to spam. Right now, most retailers and Internet merchants avoid spam merely because it is so annoying. Still, ISPs have to hire several staff (usually 1 per 2000 customers or so) to handle compaints of unsolicited commercial email. Most of this mail is sent through a third relay, abusing someone else's server as well. That takes up a decent bit of bandwidth. Don't think so? About 1200 people on my network got spammed this weekend. When they got upset, we actually saw a mini-Slashdot effect on the advertised website (and got bouncebacks from the "remove" address--timeouts). That, and the net-abuse email support queue grew to a nearly unmanageable length. Imagine now if merchants were encouraged to send spam! I, as a representative of an ISP guarantee no one but my customers access to my servers. They pay to have email, so they correspond with others; therefore, reverse correspondence is also okay. Spammers do not pay for the bandwidth they consome, the disc space they consume, the wages for the anti-spam staff, nor the customers I could stand to lose if severely harrassed. My customers don't request that those spammers send email to them, so it's not correspondence by a social definition. Basically, what it boils down to is that the servers I maintain are private property. If I post a tresspassing notice on them (or the state sets some sort of tresspassing laws), they ought to be obeyed, and the government ought to support those rules. The government, apparently, has yet to see that the differences between electronic trespassing and physical trespassing are merely technicalities. So, yes, while you can delete messages sent to you, that message has already wronged a lot of people on its path to you. This is why I firmly support anti-spam laws.

This was a Bad Decision

[Syn.Terra]

Some exerpts from the story:

The judge held that the statute is "unduly restrictive and burdensome" and places a burden on businesses that outweighs its benefits to consumers.

Benefits? Consumers? It's SPAM! How can you consider people who get spam to be "consumers"? But wait, let's look at the rest.

The law bans spam that has misleading information in the e-mail's subject line, disguises the path it took across the Internet or contains an invalid reply address.

So THIS is restrictive? It should be someone's "right" to send you unwanted commercial email that has misleading headings, is spoofed, and you can't reply to? What business would resort to these tactics unless they were pawning off worthless crap?

Apparently the guy who had this suit called against him. Here's another quote:

He did not deny that his client had sent the 17 pieces of unsolicited e-mail the state specifically documented, but he resisted characterizing them as spam.

"That's just a derogatory term that's on the other side of the table," he said. "Direct-marketing people don't like to hear the paper mail called `junk mail.' "

But it IS junkmail, and "direct marketing" is just a good name from the other side of the table. The article says that the spam was some "special offer for only $35.95" sent to almost a million people in Washington.

This ruling was just plain bad. Spam is not helpful, it's not beneficial to anyone but the sender, and it's costly to everyone else. If Washington, who has the toughest anti-spam laws, can't convinct this guy, what good are the laws at all?

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It's about states, not spam

[btempleton]

I warned when this law was passed that it was a tremendous waste of the efforts of the anti-spam community. The judge is entirely right on this one.

States have no business regulating geography-independent things like E-mail or just about anything else on the internet. While a state might regulate mail *from* people within the state, the idea of a state being able to regulate anything -- spam or otherwise -- on mail to the state is an extremely dangerous precedent.

When I send E-mail, I often don't know where the receipient is. State regulation of E-mail would create a requirement that I must know, and that I must then check the laws of that state to see if I comply, or risk being sued or prosecuted there.

"Who cares if spammers have to check where they are mailing?" Indeed, who does. The problem is that states can and have passed other E-mail regulation rules, other than anti-spam. New Mexico tried a law against "indency." But I wouldn't care if the law simply approved of motherhood. The problem is we don't want to have to worry about what states the people we send E-mail to are in, or the people who hit our web sites. Or, if you like, the states that contain the routers that route our packets.

In our eagerness to fight spam in every way possible, it is a mistake to go over the top and use the wrong tools. In the end we would get 50 different sets of E-mail regulations to worry about, and a need to know where every e-mail address is before we mail to it.

That's why it does violate the commerce clause. It makes people outside Washington mailing people in an unknown place (that's also outside Washington, as it turns out) forced to check that their address is not in Washington. The state is not allowed to do that.