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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..."
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.
Yup. The DMA. They want to spam you.
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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!
I think I'll mail EFF now.
Too big to fail? Does that make me to small to succeed?
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.
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Because of this:
Or, in CyberPromo vs. AOL:Or CompuServe vs. Cyberpromo/Sanford Wallace
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.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.
.. 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.
.. 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.
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
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
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.
We're going down, in a spiral to the ground
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.
Tom Geller