CA Appeals Court Upholds Spam Law

Joe Wagner writes: "Criminal penalties for spam, yeah baby! It has just been announced that California State's spam law has been ruled constitutional and valid by California Court of Appeal for the First District: '...we hold that section 17538.4 does not violate the dormant Commerce Clause [of the United States Constitution].' The actual ruling is here. Congratulations to Mark Ferguson and his lawyers (1, 2) for fighting it out for the rest of us..."

Comments

only a slight improvement

[Syre]

This law specifically ALLOWS spam to be sent. It just requires that spammers include a valid return email address and that they remove people from their list who want to be removed.

This is great?

It also only covers spammers who have their equipment located in California. All this means is that spammers will use mailservers in some other state or country.

The only good thing I see about this is that it requires the subject to have "ADV:" in it.

I expect absolutely no change in the amount of spam I get as a result of this law.

Re:only a slight improvement

[Howie]

...than email can be filtered server-side to cull it out.

I can do that already far more effectively using tools like procmail and SpamAssassin. SpamAssassin in turn can use various RBLs and Vipul's Razor (recently mentioned here), if you choose to.

That combination has saved me from recieving and processing about 20 messages in my personal mail today alone, not to mention the other benefits of auto-filing/trashing/redirecting that using procmail gives me.

Re:Brilliant, now...

[13013dobbs]

Is there actually a "spam lobby" anywhere that could prevent (read give money to) politicans from supporting or passing such bills in other states?

Yup. The DMA. They want to spam you.

It's about time.

[Philbert Desenex]

Spammers would have you believe that other than your time for "just clicking delete", there's no cost to spam. However, since you and I and all spam victims pay a lot of the cost of spam before purchasing the spamvertised product, market forces on spam are seriously weakened, with respect to market forces on other forms of advertising (radio and Tee Vee broadcast, newspaper and magazine advertising, billboards, stock cars, product placement in movies). For all other forms of advertising, the advertiser pays for the ads up front, before the consumer buys the product. If the ad campaign sucks ("Ring Around the Collar!") or offends (Frito Bandito, anyone?) ad victims can choose to exert market forces on the advertiser. With respect to spam, victims have already paid more than their share of the ad costs before making a decision whether or not to buy the spamvertised product. Market forces apply only weakly to spam, thus requiring government intervention. Criminalizing spam is a step in the right direction.

Spammers are all thieves. Don't forget, don't let your legislator(s) forget it. Down with the DMA!

Re:Brilliant, now...

[trenton]

I'd also like to see a legal procecution kit for this. Not all of us have the money to pay an attorney to procecute someone under this statute. If someone, like the EFF, could put together a list of filings or whatnot, individuals could do all the court paperwork themselves. I'd imagine in many cases you'd get summary judgements (where the judge finds for you becuase the other side didn't show up to court).

I think I'll mail EFF now.

Re:I don't speak lawyer.....

[13013dobbs]

In a nutshell: If you have a previous relationship with a company/person, or if you request it. People can send you ads. However you can still send people unsolicited ads if you include the string 'ADV:' as the first four characters of the subjectline. If you are sending material that you have to be over 18 to possess, you have to have the string 'ADV:ADLT' as the first 8 characters of the subjectline. In all cases, you must include a way o remove yourself from the list.

Re:I love this definition of SPAM:

[Sodium Attack]

Hmmm...Slashcode seems to have confused "(Score: 4, Insightful)" for "(Score: -1, Did not read the linked documents.)"

The law applies to anyone doing business in California, whether or not they are located in California. If you ship a product to a customer in California, for example, you are doing business in California and are subject to California law.

Re:Freedom of speech, except for Spammers...

[Tackhead]

> but if fucking C++ source code can be considered speech, why isn't "Do you want a longer penis?"

Because of this:

Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit. The ancient concept that ancient concept that 'a man's home is his castle' into which 'not even the king may enter' has lost none of its vitality. We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient. That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."

Chief Justice Burger, U.S. Supreme Court
ROWAN v. U. S. POST OFFICE DEPT.,
397 U.S. 728 May 4, 1970.

Or, in CyberPromo vs. AOL:

"In sum, we find that since AOL is not a state actor and there has been no state action by AOL's activities under any of the three tests for state action enunciated by our Court of Appeals in Mark, Cyber has no right under the First Amendment to the United States Constitution to send unsolicited e-mail....."

Or CompuServe vs. Cyberpromo/Sanford Wallace

"Defendants' intentional use of plaintiff's proprietary computer equipment exceeds plaintiff's consent and, indeed, continued after repeated demands that defendants cease. Such use is an actionable trespass to plaintiff's chattel. The First Amendment to the United States Constitution provides no defense for such conduct."

Leaving aside the fact that the First Amendment is a constraint on Congress, not private operators, it seems clear that commercial speech is (rightfully) not protected to the same extent as expressive speech.

Spammers have freedom of speech

[cje]

If I want to set up a stand on my front lawn and tell everybody about how great my penis enlargement system works, I can .. because I have free speech. If I want to promote my penis enlargement system on my Web page, I can .. because I have free speech. If I want to rent a hotel convention center and hold a series of meetings raving about the effectiveness of my penis enlargement system, I can .. because, well, you get the idea. Spammers have, and always have had the right to free speech. You are going one step further by claiming that massive (and often distributed) attacks on open relays and ill-prepared ISPs constitutes "speech." I must admit that this is one of the more puzzling arguments I've heard in favor of spammers.

I realize that the days of the "Mom and Pop" ISP have pretty much gone the way of the dodo, but back in the mid-1990s there were quite a few of them. Unfortunately, many of these ISPs (which were pretty bandwidth limited and served a relatively small amount of users) were put out of business because of the overhead effects of spammers .. not just from a bandwidth perspective, but from the perspective of computational resources as well. Back then, stories about these ISPs closing up shop were a dime a dozen.

This isn't to say I don't like spam, but if fucking C++ source code can be considered speech, why isn't "Do you want a longer penis?"

I'm starting to suspect that I've been trolled here, but assuming you're serious .. when was the last time that you took a piece of "fucking C++ source code", purchased a list of 20 million email addresses from some promoter, sniffed out an open mail relay on some poor boob's network, and unleashed a bulk mailer bot to share your "speech" with the world? You're missing the point. Nobody is saying "MAKE MONEY FAST!!" isn't speech that is subject to First Amendment protection. What is being said is that the method of delivery is illegal. A spammer has no more right to steal the resources of others to mailbomb millions of people than I have to break into your house while you're sleeping and try to sell you a can of oven cleaner.

Maybe the guy selling penis enlargment sauce really feels deeply about it and wants the world to know how truly great his product is.

Great! Then he can set up a stand on his lawn, put up an advertisement on his Web page, or put on a convention at his local Holiday Inn. Nobody is saying he doesn't have a right to promote his product. What people are saying is that there are some methods that cannot be used to do so. This has been true in the past, and it is true today.

Re:Brilliant, now...

[tgeller]

The SpamCon Foundation Law Center has as close to a "prosecution kit" as you're ever going to find. No, it doesn't offer legal advice: Only a lawyer can do that. However, it *does* have court documents from past successful cases, a discussion board to check with other folks on the details, and other info.

But you still have to file, and see the case through to the end. And then collect. Simply put, legal action is difficult. But each and every one of you can do it.