Fighting Spam With A 17th Century Law

A reader writes "Here is an interesting article which describes how a law from the year 1610 could make Spam illegal in Australia. The same story in german can be found here." Actually, since the law stems from King James I (the VI, if you are Scottish), as such, could be held British Commonwealth wide.

Comments

Created in response to this

[InterruptDescriptorT]

It's well known that this was enacted after this scroll was found kingdom-wide, causing no end of ladies to faint, the filling of dustbins and a temporary shortage of parchment:

Lords and squires,

Were you aware of the fact that you could increaseth the size of your penis by as much as half a cubit? Come visit the apothecary and essay the new miracle tonic by Dr. Goodfellow! You'll have all the fair maidens screaming, 'Good Knight!'

:)

This could get interesting

[cecil36]

I wonder what type of legal precedent could be set should a ruling be made against spam. I could imagine the judge saying "Thou art guilty of spamming. Thou shalt be sentenced to spend the rest of thy mortal life with Bernard Shifman in the royal dungeon."

Does this really apply?

[tannhaus]

someone shed some light on this. I just don't see how it would apply to spam. It sounds to me like they're grasping with straws here. We have several trespassing laws in the US, but I think any judge would strike down a case against a spammer using such laws.

Re:Does this really apply?

[DrPayOut]

Applying tort law to computer systems is something that has been emerging recently. There have been similar arguments such as that to the hacker, where there is a trespass to your systems once it is hacked and you may seek damages if hackers damage your stuff (eg delete it). Unfortunately, because tort law is quite old and wasn't designed with computer systems in mind, there have been problems such as the fact that although deleting information may amount to trespass (ie damage to chattels), you need to rely on another legal authority if they don't actually delete stuff - ie if they just hack your system and do nothing (or snoop around).

Given that, we'll have to see how the case will turn out, but the common law precedence so far has had some problems in applying similar tortious concepts to trespass for computer systems.

Note that this is a classic situation where it is a matter for the government to legislate against, and not something you should litigate in court by relying on dodgy authority from 400 years ago.

Re:Does this really apply?

[Amazing Quantum Man]

I think that Cliff Stoll mentioned a case in "The Cuckoo's Egg" about some guy who got nailed in Canada for hacking. At the time, Canada didn't have anti-hacking laws, so they got the guy for "theft of electricity".

Re:Does this really apply?

[cthugha]

You don't need to damage goods to be liable for trespass. Simply mucking around with goods or changing them against the owner's wishes (known in non-US common law jurisdictions as conversion, or trover) is a no-no. The theory is: it's your stuff, and your right to use it how you please, nobody else's, so cluttering your e-mail box (and by implication, your physical storage) with spam is a wrong.

Tort law is okay when you're dealing with actual computers, since computers are physical things, and tort law deals well with physical things. When all you're dealing with is information that is stored on a variety of different systems with a variety of different owners, tort law tends to fall down, since it doesn't deal very well with the abuse or misuse of information.

Can't we do better?

[Anonymous Coward]

Why only go back 400 years? Let's fight spam with the Magna Carta:

All Merchants (if they were not openly prohibited before) shall have their safe and sure Conduct to depart out of England, to come into England, to tarry in, and go through England, as well by Land as by Water, to buy and sell without any manner of evil Tolts, by the old and rightful Customs, except in Time of War.

See, spammers are merchants selling stuff, but not by the old and rightful Customs, in peacetime. It works, and the stretch is... just as rubbery.

Bring some 1297 smack down on em. It should be just as effective.

Re:Can't we do better?

[dgroskind]

Bring some 1297 smack down on em.

What about some 1780 BC? Hammurabi may well have been anticipating spam in his Code:
If a shepherd, without the permission of the owner of the field, and without the knowledge of the owner of the sheep, lets the sheep into a field to graze, then the owner of the field shall harvest his crop, and the shepherd, who had pastured his flock there without permission of the owner of the field, shall pay to the owner twenty gur of corn for every ten gan.

And he was clearly thinking of sys admins who left open email relays when he decreed:
If any one be too lazy to keep his dam in proper condition, and does not so keep it; if then the dam break and all the fields be flooded, then shall he in whose dam the break occurred be sold for money, and the money shall replace the corn which he has caused to be ruined.

"Is there any thing whereof it may be said, See, this is new? it hath been already of old time, which was before us." --Ecclesiastes, 2:9

Re:Can't we do better?

[Sabalon]

So, what I'm seeing here is that if anyone does something to me over the internet that I don't like, I get corn?

Lets send this solution to everyone via mass e-mails labeled "MAKE CORN FAST!!!" ;)

Re:Can't we do better?

[Dirtside]

Cornography? Or would we call it cr0n? Wait, we already have cron... hmm.

Re:Only for porn

[bmongar]

Did you even attempt to read the article? It does apply to the millionare scams too. It is a tresspass law not a porn law.

from the artilce:

and rip-off sales pitches.
The ancient law forbids a person from interfering with the goods and chattels of another person without their consent.

you know very well

[ch-chuck]

that, at least in the U.S., absolutely NOTHING i$ going to happen untill $omebody make$ a buck doing it.

Just noticed that Earthlink, out one side of their mouth, has "spaminator" prevention tools, then out of the other side, a "mass email marketing tool" you can purchase. Cheez. They probably make $$$ sending spam, then turn around and make $$$ blocking it, just like the phone companies charging a fee for caller-id, then charging a fee for caller-id-blocking.

Re:you know very well

[Sharkyfour]

Earthlink's "Spaminator" is free, but it's just about useless. It catches about 1% of my incoming spam. SO they aren't making money on the blocking end, but they're probably making a killing selling their customer e-mails lists and conviently not blocking them in Spaminator.

Also, IIRC, Federal Law in the US prevents telco's from charging a fee for blocking your caller ID information.

Re:you know very well

[Arandir]

Well, when Earthlink started spamming me (not some user of Earthlink, but the company itself), I reported them in the approved manner to abuse@earthlink.net. A day later I got an apology and said they would stop. A day after that I got another one, so I wrote to abuse@earthlink.net and threatened to sue. All spam from Earthlink, Inc. has now stopped.

Precedent for US?

[dschuetz]

The article didn't go into too many details as to what the 1610 law specified ("The ancient law forbids a person from interfering with the goods and chattels of another person without their consent" was about all I could find).

But the line "The law was brought in under King James I, and by extension it can be valid throughout the Commonwealth" intrigues me. Much of the legal system in the US is based on English law, from what I understand, and I believe that we often refer to precedent set by the laws governing the colonies, or England, before the creation of the US.

So, there's even a chance that a good lawyer could make use of this law in the US. I think. Anyone care to comment on this angle?

Re:Precedent for US?

[JDizzy]

YES, that is true. The people in the USA offten refer to ancient laws from the coloniel days. Mainly to point a finger at the Salem Witch trials, or the church rule of small communities, and sometimes we refer to the way in that the red-coats were searching, and seaizing false evidence, or how they would torture confessions out of inocent people. Yes, we look at the old laws offten, mainly to find how NOT to reproduce the mistakes of years past. After all, those laws are the basis for the bill of rights. We certainly have much to thank the British for, their tyrany forced a more free country into existence.

Re:Precedent for US?

[Daniel Dvorkin]

The Founding Fathers (who were toasting the King's health on the eve of the signing of the Declaration of Independence) were, in fact, going to war to defend and secure for themselves the "rights of Englishmen," rights which were theirs by virtue of citizenship in the British Empire, and of which they were being deprived. Why did the American Revolution produce such a civilized form of government while most other colonial revolutions throughout history have collapsed into bloody chaos? Because it was, in essence, Englishmen doing the fighting on both sides.

Re:Precedent for US?

[JDizzy]

As far as I can recall, the french looked to the early goverment of the USA, and took ideas after the French revolution (the French goverment formed after the USA did). In the end the British were forced to adopt a stronger form of parlament, also after the idea of a congression of representatives, like in ancient Greece, or in the early American goverment. So I have looked at other systems of goverment, thank you.

Whose legal system do you thing the fledgling USA based their system upon?

Like I just wrrote, we took our system of goverment based on the ancient greek society. The greek had this term for such a goverment, it was called a DEMOCRACY. You might do some reading on the subject sometime, or at the very least look it up in the dictonary.

Re:Precedent for US?

[JDizzy]

Could you provide a bit more detail? I don't think anybody actually knows what your babbling about. However, the religious right frequently digs up silly topics all the time, if that is what you mean.

Re:Precedent for US?

[Anonymous Coward]

As far as I can recall, the french looked to the early goverment of the USA, and took ideas after the French revolution (the French goverment formed after the USA did). In the end the British were forced to adopt a stronger form of parlament, also after the idea of a congression of representatives, like in ancient Greece, or in the early American goverment. So I have looked at other systems of goverment, thank you.

Like I just wrrote, we took our system of goverment based on the ancient greek society. The greek had this term for such a goverment, it was called a DEMOCRACY. You might do some reading on the subject sometime, or at the very least look it up in the dictonary.

As an expert (as in with a degree in the subject) on ancient Greek history, let me explain a few things to you:

1. The US representative democracy quite deliberately rejected the Athenian model. Athens was not ruled by a representative council (your "congression of representatives"), but directly by a public assembly in which all citizens could participate (while day to day matters of policy were carried out by the strategoi, boule, etc., they were granted their authority directly by the assembly, which could recall them or override them at any time). This is NOT the system of government we have in the US.
2. While the governance of some of the Greek leagues (in the 4th and 3rd century BCE) did play a part in providing the American founders with models for the creation of the American federation, these were not democratic bodies, but rather bodies with structures more like the old League of Nations - representatives were selected by the city governments, not directly by the people.
3. British law before the Glorious Revolution (the bloodless coup in which William and Mary were installed by Parliament)and the Civil War (the British one, by Parliament against Charles I when he attempted to disband a Parliament that acted against his interests), still depended largely upon a somewhat representative parliament for the creation of most of its laws. (I might have details wrong here, as I'm not an expert in British history). After all, the cry of the American revolutionaries, no taxation without representation, referred to their desire for representation in Parliament (what nowadays we'd call "direct rule").
4. Ultimately, the form of the American government depends upon the researchs of the founders into a number of constitutional theorists, including Polybius, a Greek historian of the Roman Republic. The Roman Republic had a representative constitution which was heavily weighted toward the propertied classes, not unlike the original US Constitution (before it was amended to allow direct election of Senators, and before e.g. the Voting Rights Act - our much maligned electoral college is another example of this kind of weighting, as it provids a stop-gap to prevent direct elections). Though one would have to say that the Roman Republic was not *the* model for the American federation, it was a more important model, surely, than Athenian democracy.
5. Finally, this is all about Constitutional law, not common law. In US practice, though IANAL, I understand that common law underpins Constitutional law, and that English common law prior to ~ 1770 is valid precedent for US Federal law and most state law (excluding the Roman-law state of Louisiana) unless it is superceded by the Constitution or by US written law (this is because the US has a written Constitution, unlike Britain with its common law constitution). There was in fact an important legal case in the middle 18th century in which Jefferson attempted to apply Roman law to a case in Virginia (regarding slavery) which settled (under the Virginia constitution at least, but I think it was accepted as precedent by the other colonies) that Roman law did not apply in English-speaking America, only English common law.

The moral of this story? DON'T GET WORKED UP IF YOU DON'T KNOW WHAT YOU'RE TALKING ABOUT.

Anonymous, because I don't need the karma.

Re:Precedent for US?

[JDizzy]

About what, the history. I think not. The USA goverment is based on the ancient greek system of rule, as dictated in the litarature available to Thomas Jefferson et'all at the time of the first congress. So no, I am correct. I am also correct about the French republic, and the British parlament.

Re:Precedent for US?

[JDizzy]

I really hope you don't actually believe all this.

What I "don't actually belive" is that this ancient law in australia will apply in a modern case. However, I do find some humor in what some people define as a "chattels" as defined in the quote from the old law:

The ancient law forbids a person from interfering with the goods and chattels of another person without their consent.

As if to say that a persons mear presence, or the act of speaking to another person can be construed as interferance. Since when do I need your permision to speak with you? Wouldn't the mear act of asking be held as interference?

In the USA, we have laws that prevent the abuse of power, such as this old law might. The idea of "freedom of speech". If a law like that were found on the book in America, it would probably be deleted, instead of used against the people. If the Australian goverment chooses to use this as a precendent, god help the people of Australia.

We all hate spammers, and the law is not the answer. The technologies being used needs to be improved, not the law. The creators of the SMTP system did not take security, or privacy into account when these systesm were first implemented back in the early days of the internet.

Re:Precedent for US?

[JDizzy]

First of all, your credibility as an "expert" is under serious question since you refuse to identify yourself, until then your words are the vapor of an anonymous coward, and will be treated as such.

In responce: What does American system of government have to do with the British, or the French? If anything, you have illustrated my point. America is based on the ancient Greek system of rule, albeit a modified version. Actually you have taken my original point to a whole new low; I was talking about how the old laws of British rule were the basis for the American Revolution. The same class of laws might end up hurting the people in Australia. By people, I mean to say the assholes that use spam as a form of "free speech", and "free expression". Nobody likes spam, but everybody should be free. The issue is not the spam, it is the technologies that allows the spam to exist in the first place.

Re:Precedent for US?

[susano_otter]

Funny. As has been pointed out elsewhere, the fair rule of British law was being systematically denied to the North American colonies. Restoring the rule of law in the colonies was one of the more significant motivations for the American revolution. This is why British common law underpins modern American law: the founders wanted it that way.

Not that this has anything to do with the American government (which, as has also been pointed out--notably in the post you replied to--was based on a modified variant of the Roman republic). How we administer our laws is separate from the body of laws we administer. Except, of course, for those laws that govern the administration of laws. However, given your obvious discomfort with more basic concepts, the idea of meta-laws (and meta-governance) might be a little too esoteric for you.

Which is better? An AC who makes thoughtful, well-written arguments in support of a position, or a registered user who writes complete nonsense and is rude as well? I know which "expert" has more credibility in my book.

Re:Precedent for US?

[JDizzy]

yuppers, in the begining only rich land owners could have any sort of influence of politics. As far as a myth goes, I'd counter that it is a myth that you perpetuate in yourself that we Americans are all the same, and hold the same values. Obviosly you have just made a comment based on an opinion, not a fact.

Re:Precedent for US?

[JDizzy]

I never claimed that the founders DID NOT take a que fromtheir environment, and maintain a qazi English system of rule. However, the fact remains that Thomas Jefferson, and Benjamin Franklin both were into Greek Mythology, as most folks back in that day were of the classical education. Indeed, the basis of American politics is very much a rip-off of ancient Greek society. At that same note, one does not simply invent a new form of goverment over night. Thank you for you comment, but you obviously don't know what your talking about. Thanks anyways.

Re:Precedent for US?

[susano_otter]

Come now! There's a difference between being "based on the Roman model" and being "influenced by the Greek model". I don't think the original poster was trying to prove the latter false, merely asserting that the former was true.

And where is your proof of the "fact" that 17th-century British common law conflicts with modern Australian law? For someone who takes reputation so seriously, you seem to be staking yours on emphatic statements on a subject you seem to know little or nothing about. In fact, you're making a prediction about the outcome of future events--something none of us can know anything about!

Finally, on what basis are you asserting that the parent is not anonymous, but a coward? Are all ACs cowards? Or just the ones that claim some expertise in the field under discussion? Would you be happier if the parent poster made no claim, but simply posted their statements claim-free? None of us can verify each others' credentials in any meaningful way; all we can do is judge the posts on their own merits, indepentently of outside context--the claim is irrelevant, the quality and presentation of the data is all that matters.

The tone of my posts reflects my own judgement of your posts, just as your tone reflects your judgement of the parent.

Re:Precedent for US?

[pubudu]

I never claimed that the founders DID NOT take a que fromtheir environment, and maintain a qazi English system of rule. However, the fact remains that Thomas Jefferson, and Benjamin Franklin both were into Greek Mythology, as most folks back in that day were of the classical education. Indeed, the basis of American politics is very much a rip-off of ancient Greek society. At that same note, one does not simply invent a new form of goverment over night. Thank you for you comment, but you obviously don't know what your talking about. Thanks anyways.

An interesting theory, and one shared by a disturbing number of academics, but ultimately unsupportable. There was no right of revolution in Greece, but our Founders claimed it. Compare the Declaration of Independence with Chapter XIX of Locke's Second Treatise. There was no natural right in Greece, but our Founders claimed it. Compare Jefferson and Locke again.

The ancient Greeks thought commerce was the exclusive domain of slaves and resident aliens, not the work of a gentleman; our Founders promoted it. See John Locke again. The Greeks tolerated no distinction between Church and State; compare the First Amendment with Locke's Letter Concerning Toleration.

The basis of political organization for the Greeks was the polis; it was well understood that too large a citizenry would break down the attachments between citizens and hence civic virtue. The Federalist Papers are quite clear that this was a fatal flaw with the Greek system; an expanded sphere was needed. The Greeks relied on confederations for anything requiring more than a single city; Madison and Hamilton attack this as a recipe for failure. Madison's cure for faction is precisely to break people's attachment to their own local loyalties and tie them to a great state in which most of their fellow citizens are anonymous.

True, we did copy Greek art in our capital. No, wait, the Greeks painted all their stuff in gawdy colors; we copied the Romans. In the architecture. We did not copy their institutions, nor did we copy those of the Greeks. These are the mistakes from which all friends of popular governments recoil, disheartened.

In short, Locke, not Solon or Lycurgus, is the intellectual founder of the the American regime. Of course, seeing as my dissertation is on this, I may be a bit partial.

Re:Precedent for US?

[Jay L]

Other way around, actually - we did it first in the US, in the mid-90s. AOL has won several anti-spam lawsuits on the common-law trespass-to-chattel theory. Check http://legal.web.aol.com.

Given that, it's pretty funny to see a bunch of non-lawyer geeks arguing about the Revolutionary War and the Greeks just below here, ain't it?

Half a cubit?!?!?

[wiredog]

IIRC, a cubit is roughly 3 feet (1 meter). I think the ladies would run screaming for the exits if they saw that waving around!

Re:Half a cubit?!?!?

[Raetsel]

Geez... I always thought a cubit was defined as the distance from a grown man's elbow to his outstretched fingertips. I do know it's commonly accepted to be approximately 18 inches (which converts to about 0.457 meters).

Still... adding on 9 inches could be... painful. Just ask any woman who's had her ovaries jostled by an overeager fellow -- feels a lot like a kick to the goolies for the guys. It'll end the festivities REAL quick.

• "...run screaming for the exits..."

Certainly a very possible reaction -- that, or they nominate the fellow for "Hung Jury." (Don't know what Hung Jury is? Use your imagination, or look it up. Hint: dating for women who like to "live large.")

Re:Half a cubit?!?!?

[Tackhead]

> IIRC, a cubit is roughly 3 feet (1 meter). I think the ladies would run screaming for the exits if they saw that waving around!

"Forsooth, I was once known as Sir Launcelot, yet after trying this mirackle programme, the fair maidens call me Sir Lotsa-Lance!"

Yeah right

[NiftyNews]

Yeah right, as if this would ever hold up in court.

What's the penalty, being placed in a stockade? 30 Lashings? Or maybe getting tied up and tossed off the front of a moving ship like pirates used to do?

Re:Yeah right

[smnolde]

Being tossed off the front of a moving ship is called keel-hauling. Usually you're tied to a rope around the waist, thrown off the front and then you must swim down to prevent being hit by the keel and rudder. When (and if) you survive coming out the aft you're pulled up and out of the water only to be thrown back off the front.

Rinse - lather - repeat.

Re:Yeah right

[markmoss]

Keelhauling was only used for certain ship-board offenses, so as good as it sounds for spammers, it wouldn't apply to trespass. In the laws of the _land_ in 1610, punishments ranged from the stocks to excessively painful forms of execution like drawing and quartering. For trespass, probably the stocks: that is, the miscreant is locked into a wooden frame out in the village square, and the victims and other villagers get to throw rotten veggies, etc., at him for a designated time, but the guard is supposed to prevent any throwing of large rocks or other things that might actually kill him.

How would we update that to the internet age? Would the spammer's victims be allowed to hire "designated throwers" by e-mail? 8-)

Re:Yeah right

[Tackhead]

> For trespass, probably the stocks: that is, the miscreant is locked into a wooden frame out in the village square, and the victims and other villagers get to throw rotten veggies, etc., at him

"Hey spammer! You're receiving this rotten tomato 'cuz you're on our list of people interested in rotten tomatoes! *zingggg-splat*"

"If you don't want your daily hot teen tomato, just type 'i no longer wish to receive my free tomatoes'! *zingggg-splat"

"Pity he's in the stocks and can't reach the keyboard, huh? But if he's too lazy to opt out of the tomato list, it's not my problem! He must have subscribed from somewhere and forgotten about it! *zingggg-splat*"

Re:Yeah right

[sik puppy]

No - the navy is good about keeping barnacles scraped off of their ships hulls...it slows their speed noticably.

Now an old rust-bucket freighter/tanker with lots of nice sharp barnacles...

Re:Yeah right

[cpt kangarooski]

Apparently it does, as per the AOL cites above. And furthermore, in the more commonplace instance where someone interferes with your personal property (e.g. keys your car) trespass to chattels is used to recover damages from that person.

Lots of our law dates back all the way to the Norman Conquest. The _damages_ on the other hand, would merely be however much it costs to repair the harm to the car. Perhaps if this was a person who did this constantly, there'd be some punative damages, though it's a bit unlikely.

Of course, if you take offense to having to use a common law provision that's so old, you're free to pay for it out of your own pocket and let them get off scot-free.

Off with their HEADS!

[JDizzy]

Funny, I didn't see any mention of what the penalty is for the ancient crime. If it has anything to do with a head being chopped-off, then I vote to enact the law in the entire common-wealth. Then we Americans can export our spammers to these places where they can be put to death! Honestly, if the punishment is not fitting of the crime, then the criminals will continue to attack inocent email addresses.

Re:Off with their HEADS!

[JDizzy]

It was a joke, but yeah.. I'm sure if you live in a religion based rule of law, sending spam is not a good idea.

It took them over 200 years...

[dbretton]

But England finally has a valid argument why the US should give the colonies back.

-Dennis

Re:It took them over 200 years...

[Dolly_Llama]

I live on the West Coast. England can have those damn colonies back...

Course then again, maybe I should brush up on my Spanish.

Use your brain

[TheJesusCandle]

Maybe the problem isnt spammers, it's the idiots with email accounts. Of course your going to get mad spam if you give out your email address so freely. I have several email accounts. One strictly for receiving email from family and close friends, and another for the purpose of when i have to submit my email address to websites for various reasons.

And guess what, i never get spam in the email account i use for family and friends. Spammers can only send you junk mail if they know your address, so use your brain and stop giving it away.

Just as birds will surely shit on the hood of your car, your going to get spam. We dont need arcane laws to prevent something we can all not have to deal with if we just bump up our iq a notch or two.

Re:Use your brain

[grungeKid]

By the same logic, the problem with breaking and entering is not the burglars, but rather the homeowner who doesn't install enough locks and anti-burglar alarms. I don't buy that.

Why should I have to make it harder for people to legitimatley contact me, by for instance obscuring my email address on my web page [well, actually my webpage is down, so don't click that link]?

Anyway, spammers can guess your address even if it has never been published anywhere. Try to set up a mail server acting as a MX for some newly registered .com domain. It *will* get probes by spammers trying to send a email to "joe@somecompany.com"

Re:Use your brain

[-brazil-]

Better yet, get your hands on any system through which a lot of traffic is routed. Grep all traffic on SMTP and POP3 for email addresses. Be sure to have a huge HD to save the millions of valid addresses (if you look only at the envelope).

Fact is, if you send an email, it usually goes through dozens of systems, each of which could log your address and sell it to a spammer.

Spamish Inquisition?

[jfrumkin]

Hmmm, no one expects it.....

Re:Spamish Inquisition?

[Reziac]

Remember what happened to Luke after that immortal line?

*BANG*

Nah, that's too good for spammers. :)

Brings back memories...

[bachelor3]

The ancient law forbids a person from interfering with the goods and chattels of another person without their consent.

Ah, I remember the first time I had my chattels interfered with. It was at a drive-in...uh...no, wait. I think I misunderstood.

Cool!

[Bob McCown]

Does that mean that 17th century punishments apply? Beheading? Burning at the stake?

Re:Cool!

[heikkile]

Does that mean that 17th century punishments apply? Beheading? Burning at the stake?

Too kind for them. No, we will deport them to Australia!

related article in alt.sysadmin.recovery

[fanf]

Now, *that*'s entertainment.

Must be

[macdaddy]

Thall shalt not spam.

or

Spam and ye shall be beheaded.

Trespass to chattels

[fmaxwell]

This same legal construction has been used in the U.S. in lawsuits regarding unwanted access to servers and computer resources. AOL has used this as a legal tool against spammers in lawsuits.

Old news.

[www.sorehands.com]

Tresspass to chattel has been uphelp in Intel v. Hamibi.

Scraping has been uphelp under the Computer Fraud and Tresspass act.

SPAMMERS that get email off of websites, are breaching copyright and terms of use (or at least on my site) on a website with a carefully crafted terms of use.

Now that will work

[duvel2]

Isn't it time to face the fact that the spammers don't care about the legality of their actions?

As is mentioned in the article, and as has been shown over and over again, spammers don't have an inch of morals. It would even seem that (at least in Russia) they're usually part of bigger crime syndicates;

So it doesn't really matter whether you can find a law to outlaw spamming. The spammers will never care about such a law. As long as there's money to be made, these kinds of illegal activities will continue. And even if spam would be outlawed, as it doesn't seem like there will be a 100% working filter for spam in the near future, all the spammers have to do is remain somewhat anonymous (or out of jurisdiction) to avoid prosecution.

Sad but true: nothing can be done against them.

Re:Now that will work

[Zocalo]

Isn't it time to face the fact that the spammers don't care about the legality of their actions?

True enough, the spammers probably don't give a damn about what pathetic legislation can be brought against them at the moment, especially the hardcore responsible for the bulk of it. More serious legislation to let you go after the spammers, the ISP hosting them and maybe even the luser whose open relays were used would still be a further deterrent though.

That aside, I don't think you can win the fight against spam by going after the spammers directly either, but what is required is to remove their support infrastructure and watch them wither on the vine. If spammer friendly ISPs are more liable for the actions of their customers then we might stand a better chance of reducing spam. My dial up ISP in the UK, Demon Internet, has recently institued a policy of pulling the plug on it's customers before notification of the customer if they are, or are being used to, spam. Like any legislation this is a start, and every little helps... the more ISPs that implement similar procedures the better.

Ancient Laws...

[DrWhom]

Well, okay ... that's the porn sorted. D'you think we could use the Anti-Witchcraft laws now to get rid of pop-ups, pop-unders, pop-bys and the rest!?

Re:Ancient Laws...

[markmoss]

Yeah, sounds great. After all, for trespass the penalty was probably only a few hours in the stocks (less comfy than it sounds, since the villagers got to throw stuff). But burning whoever invented pop-ups at the stake sounds just about right...

Re:Ancient Laws...

[jesser]

Why not just use anti-cracking laws, laws against denial of service attacks, and laws that require (some?) sites to be reasonably usable by a blind person? Note that none of these laws are really "new" or specific to the tech world: there are "real-world" laws against breaking and entering with the intent to steal, breaking other people's toys, and building a store that is unnecessarily difficult for disabled people to navigate.

Re:Ancient Laws...

[Kiwi]

That, oh honorable one, is why there be dragons for thee. Thou can be protected from the inniquity of pop-ups by placing this dragon to guardeth thy computer.

(0.9.8 has all sort of Javascript options; can you say "goodbye popups"?)

- Sam

Won't work, I'm afraid

[ColGraff]

First of all, this passage's connection to spam is even more tenuous than the other law being discussed. More importantly, the Magna Carta does not give any rights at all to the average man - it was intended for the protection of nobles - so the only people who'd benefit from this would be the House of Lords. Shame, though. I rather suspect the penalties for violating this part of the Magna Carta are...interesting.

Attorney: yes

[hawk]

I am an attorney, this is not legal advice. If you need legal advice, contact an attorney licensed in your juridiction.

I've been suggesting this approach for years (but wihout the bungled reporting). When the spam enters your system, it exerts physical dominion over your chattels (the bits, the head mechanism, draws additional power, etc.). Trespass clearly applies, just as when some dolt lifts you windshield wiper to insert an ad.

The reporting is a bit mish-mashed, though: Common Law comes from the courts, yet it reports trespass as coming from a particular king (and it would have to have been a king *and* parliament).

I've always assumed trespass to chattels to be Common Law, not a statute, but I'm not willing to spend a half a day looking it up . . . my guess is that the seminal cases in the courts date to his reign, and possibly were decided by the high court known as "the King's Bench," which followed him about England hearing cases & appeals . . .

hawk, esq.

Re:Attorney: yes

[hawk]

Somewhere there's a fruzzy line involving implied consent. I don't have references/citations to hand out (and the questions you're asking will be influenced by local ordinances.).

If it interferes or tampers with property, it's probably trespass. I've had brand new (that morning) wipers damaged by the insertion of flyers (fliers? I don't think I've ever typed that word before . . .). If it causes damage, it's almost surely a trespass.

Social convention could imply consent, as in the yellow stickies from UPS--they do no damage, and society is better served with their use. OTOH, if you had a sign up prohibiting posting stickies on your door, it would probably be a trespass--though against real property (the house), not a chattel. (please excuse the occasional ss; I can't type today).

As a first approach, look to potential for harm, consent, and whether society is better off assuming consent.

hawk, esq.

Re:Attorney: yes

[Dimensio]

Actually, I'd always heard that windshield wiper flyers were considered littering, but if I can nail the companies responsible on trespassing charges, I'll happily report it and press charges.

Re:Attorney: yes

[Bastian]

Wow, I could make an entire living out of parking illegally and suing cops who ticket me with this law.

Re:Attorney: yes

[Dirtside]

I have a question. Is it the receiving of the spam (i.e. when I go to check my mail on my home computer) that would (in theory) qualify? If so, then what's the difference between spam and a piece of "legitimate" email, aside from the fact that I don't make the mental distinction until I actually read it?

It seems to me that this would be like allowing anyone to walk onto your property, but when you see someone you don't like, but haven't previously told to not come on your property, prosecuting them for trespassing.

Not that I like spam; just curious about the legal ramifications.

Re:Attorney: yes

[hawk]

The trespass would occur when the interference with the property occurred. Legitimate email is that which had explicit or implicit permission to make the physical contact: your family (except maybe *those* inlaws :), friends, people responding to a post you made on usenet, and so forth. You have *agreed* to let those people use your property (implicitly in the usenet case).

Spam had no permission, explicit or implicit, to use your property. Furthermore, email customs dating back over 20 years make it clear that permission is denied. The forging of headers and such also show an actual awareness that there is no "social" permission for this type of contact.

A better analogy would be that you allow your friends on your property, and then ask to have arrested someone who came on to your property to let his doberman "decorate" . . .

Similarly, in most neighborhoods, it is accepted that children will run into an unfenced yard to retrieve a stray toy, but this doesn't suggest that you have permission to follow the identical path to walk your dog or park your trailer.

hawk, esq.

Re:Attorney: yes

[Dirtside]

The problem I see with this is one of delineation. Obviously, $$$$MAKE$$$$MONEY$$$$FAST$$$$ isn't going to be welcome, but what about an email from a friend of a friend who has an actual business proposition for me? There's obviously a continuum between pure, evil spam and "honest" transactions, and where along that continuum does it become trespassing? I could point at the second email and say, "Business offer! I didn't specifically request it! Trespassing!"

Is it trespassing if a door-to-door salesman walks onto my property and knocks on my door? There is no general consensus as to whether such things are allowed; there's a fair proportion of people who wouldn't object to the salesman walking up, regardless of whether they were interested in his particular business.

Unless the law is specifically written or interpreted to indicate that *only business offers* qualify as trespassing, I could use such a legal maneuver to sue anyone who emailed me that I didn't like. If I posted a flame on Slashdot, and then someone emailed me a response, I could decide to sue him. That hardly seems fair. It's like suing someone for sending you mail, which (as far as I know) you cannot do.

Another question is, what's the difference between Publisher's Clearinghouse sending me snail mail spam, and hotporn.com sending me email spam? Do you think there shouldn't be one (i.e. any spam-like mail you get in your physical box can allow you to charge the sender with trespassing)?

Re:Attorney: yes

[cthugha]

Firstly, we need to clarify terms. Although the tort is referred to as trespass, that doesn't mean it is wholly a part of the law that relates to trespass to land. In reality, there are several types of trespass: trespass to land, trespass to the person and trespass to goods. Trespass to the person is also known as battery (i.e. what is commonly referred to as assault).

These three kinds of trespass do share a lot of basic principles, but are still distinct areas of law. The rules regarding permission in trespass to land differ from those in the other trespasses. For example, trespass to the person has to deal with the issue of unintentional physical contact, e.g. being jostled on a bus, which trespass to land does not need to concern itself with.

You do have a valid point, in that what does constitute consent is a tricky issue to determine. In the case of trespass to land, you have to put yourself in the shoes of the defendant and ask yourself, "would the reasonable person infer permission to enter onto the plaintiff's land given all the existing circumstances". Since this is a question of fact rather than law, it goes to the jury, but the jury can consider anything that might be relevant. For instance, if a landowner erects a fence around the property and seals it with a gate, it would be unreasonable to infer permission to enter, and vaulting the fence would be trespass. But for most cases, where there is an open driveway leading up to the front door, it is reasonable to infer permission to enter until that permission is explicitly withdrawn by the landowner.

Note also that permission doesn't have to be total and unconditional. In the example of an open driveway, the permission really only extends to the area of the property that is open. Breaking the lock on the front door and going in would be going beyond the bounds of the licence to enter, and would be trespass. In addition, an implied licence to enter may only be extended to certain classes of people. In Lincoln Hunt Australia Pty Ltd v Willessee (1986) 4 NSWLR 457, it was held that the implied invitation for potential clients to enter a shop did not extend to journalists who intended to harrass or robbers. (That's important, because when you withdraw a previously extant invitation or licence, you have to give the person a reasonable amount of time to leave before a trespass could be considered). In other words, you can give permission for people to e-mail you whom you don't know, but still exclude spammers as a class.

In short, yes, the issue of when and when there is not consent is fairly uncertain, but that doesn't translate into an automatic right of action against anyone who 'trespasses'. Unfortunately, I'm not really up on trespass as to goods, so I can't really tell exactly what would be considered in this case :(, but you get the general idea.

Re:Attorney: yes

[Capsaicin]

Heh. I'm halfway through my first-year criminal law class, and I'm sure that there's an equivalent crime

Nope, you would need an 'asportation' for larceny to run

Re:Attorney: yes

[hawk]

I'll go along with that, and add a bit:

Dirtside seems to have entirely missed the point about social conventions establishing consent, and is focused on a very tiny set of cases that might possibly be difficult to classify.

Substantially all of what we call spam is, without dispute, mass-mailed from harvested lists. There is *no* good faith argument for these in any of the cases dirtside brings up, and as I mentioned, the measures taken to bypass filters show that these messages are knowingly nonconsensual.

If we made every case of "we have a past relationship (other thaqn the mere order of merchandise from a retail establishment)" an absolute exception/defense, people would still average less than one spam a year--seriously, folks, how many of you have ever, even once, received a real business proposal from someone with whom you weren't already doing businsess by email?

hawk, esq.

We don't want that law applied to email

[cduffy]

The law, if extended to email, could apply to any mail or network traffic affecting a computer owned by someone else. As much as getting rid of spammers may be a Good Thing, we really, really don't want it applied to email (or any form of network traffic) lest you find yourself getting sued for trying to connect to the wrong address by mistake (after all, a new log entry was created -- you altered the owner's machine without his consent!)

About the law itself

[mirko]

The ancient law forbids a person from interfering with the goods and chattels of another person without their consent.

Hmmm... Now if we respect this like they did respect it sounds like,m thislaw meant : "Don't touch my property while I steal yours"...

Examples:

• Slavery
• Colonization
• ...

So, my advice would be never to invoke a law that not only has never widely been followed but also is totally dumb: If you interfere with some people's Bell because you want to contact him, he should not sue you.

So, I think this law itself is antisocial even though I agree with the fact we have to kick the spammers.

Re:About the law itself

[Arandir]

So, my advice would be never to invoke a law that not only has never widely been followed but also is totally dumb

It's not a totally dumb law, but quite sensible. Translated into modern English, it says "don't mess with my stuff without asking first".

Re:About the law itself

[Arandir]

It doesn't matter about my mailbox at all. It's publicly available for people to stuff messages into. But my ISP is a different matter. So are all those servers out there the spammers use. My ISP's mailer server is for the use of the ISP and ISP's clients. A spammer that uses it to bounce messages around and stuff is breaking the law.

Article Disclaimer

[isorox]

"This material is subject to copyright and any unauthorised use, copying or mirroring is prohibited. "

Darn it! I've just broken this law by going through 2 web caches and my own computer - thats 3 copies, will I be hanged?

Canada is no longer a commonwealth

[Billly Gates]

They seperated about 25 years ago from the crown. This is why their flag is a red maple leaf and not some other design with a british commonwealth logo on the upper left hand side.

What we need to do is have a full counter revolution here in the states and be back under british rule. After that we would have more civil rights.

Its a sad day indeed when an American wishes there were under british rule because they want more personal freedoms. I bet all our countrie's fore fathers would be turning in there graves right now if they knew how much influence hollywood and other corporations have right now. The telecommunications act of 1996, the DMCA, and the wipo act, are just the begining of whats going to happen if you look at how much money has gone into the olitical system in the last 20 years. More money has gone in during the primaries of 2000 then the whole election of 1992! Guess who were the top contributers? MPAA, RIAA, ENron, AT&T, Verizon, GE, health insurance companies, etc. Sick sick sick.

Re:Canada is no longer a commonwealth

[DebtAngel]

Umm, no.

We may not have the Union Jack on our flag, but the Queen of England is still our head of state, and still has to sign all of our laws (even if by proxy through the Governor General and Lt. Governors).

Re:Canada is no longer a commonwealth

[dgroskind]

They seperated about 25 years ago from the crown.

Part of the rich legacy of common law that Canada inherited from the Crown are:

Writs of assistance . Senior officers of the RCMP still carry the very same universal search warrants that were one of the causes of the American Revolution.

Cats may not be restrained. To combat the rats that caused the Black Death in London in 1665, Charles II ordered that cats be allowed to roam free. This decree has the force of law in Canada and municipalities cannot issue cat licenses.

Re:Canada is no longer a commonwealth

[alexburke]

They seperated about 25 years ago from the crown. This is why their flag is a red maple leaf and not some other design with a british commonwealth logo on the upper left hand side.

*ahem* (Ontario)

Re:Canada is no longer a commonwealth

[UnknownSoldier]

> Canada is a separate and sovereign nation independent of the crown but acknowledges its past history with it.

Canada constitution was patriated in 1982. SOURCES OF CANADIAN LAW

Just one question:

Can *anyone* show me a definition for "patriated" -- because I can't find it *any* dictionary!

Re:The US is not England

[dschuetz]

There was this thing called a "Revolution" a few hundred years ago, which means the American colonies threw off Brittish rule and formed a new government, with new laws and such.

No shit, really?!?

Look. Just because we've formed a new country and disconnected ourselves from England doesn't mean that we don't accept some of her principles of law. I believe, for example, that much of US property law is derived from English law, though I'm having a devil of a time verifying any of this online right now. Which is why I asked if anyone here could comment on it.

No, we are not *bound* by England's laws. We certainly can't point to new laws in the British Commonwealth as precedent for our own. But we grew out of the British system -- our colonial laws were British laws, and our Constitution was written by people who'd grown up accustomed to those laws. It's my understanding that, in cases where current law is unclear or ambiguous, the courts have looked back to pre-colonial laws and practices for prececent.

Sheesh.

Re:Cananda, also

[Guppy06]

That depends.

If this "law" turns out to be something enacted through common law instead of an act of Parliament, this will apply to most of the US as well (since most state constitutions include English common law, Louisiana being the only exception I know of).

This is probably something worth looking up.

Re:The US is not England

[Detritus]

Except for Louisiana, pre-revolution English common law is the basis for the legal system in the United States. Blackstone's Commentaries on the Laws of England was a popular legal text in the United States for many years after the Revolution.

Re:The US is not England

[Suppafly]

We don't follow british laws, we do however refer to british commonlaw to help decide cases that don't have precedence in the US, since its a widely known fact that the majority of our law, while deriving its authority from our US Constitution, is mostly found in british common law. Our civil and tort law is almost exactly like british law.

Re:The US is not England

[hawk]

>There was this thing called a "Revolution" a few
>hundred years ago, which means the American >colonies threw off Brittish rule and formed a new
>government,

so far, so good . . .

>with new laws and such.

[insert rude buzzer sound here]

The Constitution *explicityly* acknowledges the Common Law. Common Law rullings until some vaguely defined point in the late eighteenth century are quite valid in the U.S., unless overruled/superceded/obsolete/etc.

>We don't worship a queen,

Worship? :)

We bow our knees to no king--but we're *very* clear which king we're not bowing to .. .

hawk

Your examples are off target...

[LordZardoz]

Laws generally protect the citizens of a given nation, not forigeners. So 17th Century British law would not protect the rights of Native Americans or Africans.

END COMMUNICATION

Re:Your examples are off target...

[mirko]

This law explicitely mentions "Persons".

Bring me...

[wiredog]

The COMFY CHAIR!

Re:what does the legality matter?

[mark_lybarger]

sure the point might be contrary to the popular ./ opinion, but does that make it any less relevant? who is in the right? the person speaking against racial discrimination, or the KKK?
the point wasn't that spam is good and nice, the point was that it doesn't need to be solved by making laws (effectivly at the cost of the population as a whole). fix the system, don't apply a patch

Keel-hauling

[ColGraff]

"Or maybe getting tied up and tossed off the front of a moving ship like pirates used to do?"

That's called keelhauling, by the way. Nasty way to go. The rope is tied to the front of the boat, and by the time you're at the rear, you've been concussed, drowned - not fun.

What is the punishment?

[DrXym]

Let's hope it involves torturing the spammers on the rack, hanging them up by their thumbs and shoving red hot pokers up their backsides.

You wish you were British????

[Stoutlimb]

And you think that you have issues with Big Brother now... wait till you see what the English have in store for you... Pretty soon in England you won't even be able to take a sh!t without having it logged in a GPS-enabled toilet and uploaded to a mainframe database to be added to your profile.

Careful what you ask for... The brits are the worst for privacy issues.

Re:not in Scotland..

[DrXym]

Wrong, you're not necessarily trespassing.

You are trespassing if you damage property (e.g. fences), poach or enter private grounds of a dwelling or other private property.

The law reasonably only applies if you're moving from point A to point B and have to cross private land to do it.

laws accomplish nothing

[MoNsTeR]

Criminalizing alcohol sure made that disappear real fast. And seeing as how we've been fighting the War on Drugs for over 20 years, it sure is hard to get a bag of dope these days. And piracy! With all the laws against making copies of music, movies, and software, that's not a problem at all!

Making spam illegal won't make it go away. A law is just words in a book somewhere, and has no effect unless enforced. And enforcement means finding people and locking them away.
1. do you really want that to happen? REALLY?
2. do you think it's actually possible to find these people and prove them guilty?
3. holy christ man, put a man away for 10 years in federal pound-me-in-the-ass prison just for sending you a toner ad? You've got issues.

Evil Tolts

[T1girl]

to buy and sell without any manner of evil Tolts

Now that this thread has pretty much settled the definition of a cubit, any enlightenment on "Tolts" - evil or otherwise?

You must be present to win.

Re:The US is not England

[dgroskind]

in cases where current law is unclear or ambiguous, the courts have looked back to pre-colonial laws and practices for prececent.

Supreme Court rulings cite common law all the time, sometime where existing law is ambiguous and sometime to reinforce existing interpretations.

See, for example, WASHINGTON et al. v. GLUCKSBERG et al.. In this case, which asserted a 14th Amendment right to assisted suicide, Judge Rehnquist wrote: "More specifically, for over 700 years, the Anglo American common law tradition has punished or otherwise disapproved of both suicide and assisting suicide." He cites a 13th century legal treatise and Blackstone Commentaries from the 18th century.

Justice Scalia, concurring, writes: "We now inquire whether this asserted right has any place in our Nation's traditions. Here ... we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice..."

In effect, he makes an appeal to common law to justify a narrow interpretation of the 14th Amendment instead of broadening it.

The Spam Mafia?!

[citizenc]

Spammers can make $1 million a month and many are part of international crime syndicates, Kim Heitman, chairman of internet rights group Electronic Frontiers Australia, said.

If they're part of an international crime syndicate, do you think we could form a little geek syndicate of our own and start a war? :)

Re:The Spam Mafia?!

[gmhowell]

Sounds funny, but too damned dangerous.

Had an econ prof who loved international stuff. Now, if you look at the books that the gov't keeps on money/goods/services going into and out of the country, we are talking billions and billions of dollars. But there is a small amount (.1%) that is unaccounted. And there is all sorts of esoteric stuff. How many feather pillows were imported.

Now, my econ prof wanted to do his doctoral thesis on this .1% of international trade (this is based on US. I suspect higher in some countries). His advisor strongly urged him not to. We all assumed because it was too much of a PITA. Our prof assured us no. His prof wouldn't have a problem with that. No, his prof didn't want him to dig too deeply into the underbelly of international trade.

Turns out that a few people have looked into this, and the results are that 90% of the miscellaneous stuff is due to trade by guys from a little island near Italy. Who are particularly private about certain things.

You start a war with the Cosa Nostra if you want. As for me, I'm keeping my guns ready to defend my rights.

(Although I guess comments like that can get you modded out of existence on /. these days)

Although this has been under challenge

[Spinality]

There are strong fears that Scotland's traditional "no crime of trespass" will go the way of the Dodo. The two main culprits: a cadre of obnoxious, litigious, wealthy landowners, many of whom are newcomers to Scotland; and foot & mouth disease, which is the justfication for the change. Let's hope these efforts fail, though the last I heard it was looking kinda grim.

Open Relays

[Bastian]

A lot of spam works through taking advantage of open relays. Due to the way abusing them works, I don't think it counts as cracking the mailserver (At least I certainly hope it doesn't, that could put a real damper on my hobby of sending out crank email.)

However, using someone else's mailserver to forward your spam without that person's permission would certainly count as interfering with another's goods and chattels.

Re:Littering

[malevolence]

This is somewhat OT, but what about the f*cking avon lady. She keeps throwing those idiot catalogues in my driveway. I've already informed this woman that I am not interested in this crap and don't want them on 3 different occasions. What can I do? The cops are not gonna respond to this (and rightly so, they've got more important stuff to do). I've taken to signing her email address (which she puts on the label) up to receive a bunch of newsletters and crap, but I still don't want to see them anymore. If anyone has any ideas, I'd be glad to hear them.

Thanks,

Re:clueless journalists strike again

[Tackhead]

> > They said they wanted people only 18 and older, but that did not stop them from sending the e-mail to a [someone whose Hotmail profile said she was a] 14-year-old girl.
>
> Because spammers obviously check out your personal profile before mailing you.

Of course they don't. The journalist writing the story probably even knows this.

But if the law says Thou Shalt Not Email Minors when spamming pr0n, and a spammer doesn't take reasonable steps not to email minors, such as checking profiles where they exist, then the spammer's broken the law.

The spammer is likely to whine "Well, I can't check all my hotmail.com addresses against the profiles!". If he does so, I hope a judge bitchslaps him into next week.

Because, you see, the spammer can check. At a rate of perhaps 100 or so hotmail.com profiles per hour.

What he can't do is spam all 10 million hotmail.com addresses if he checks. But that should be the spammer's problem, not the recipient's.

When a spammer says he "can't" check, he's really saying he won't check, because it would cut down on the rate at which he could spam. It'd make him have to work. And spammers don't like that.

To which the only response is "Fuck what the spammers want. It's not their network." And we're back to the trespass-to-chattels argument.

Clarifications

[TekPolitik]

1. Common Law, not Statute

As others have pointed out, this is a Common Law rule not a Statute, and it's a lot older than 1610, dating back to the 1400s. And it's a civil (torts) matter, not a criminal one.

2. Potentially Applies Throughout the Common Law World.

The most significant cases for this are The UK (except Scotland), the US (except Louisiana), Canada (except possibly Quebec), Australia and New Zealand.

3. Only Applies Where Implied Consent is Negated.

There is clearly implied consent for person-to-person email, even if inadvertantly misdirected. The assertion in this case is that there is no implied consent for spam.

4. This is NOT Going to Cause Paranoid Problem X.

The issue of implied consent, which is dealt with by the courts in remarkably sensible ways, prevents every single absurd outcome suggested here. This will only nail things that society considers abusive practice.

5. You Can't Draw Conclusions of Law Based Solely on a Brief Article in the Popular Press.

It takes other things, like, for example, knowledge of the way courts interpret things, and in the case of Common Law, full knowledge of all the rules involved (which are many) to draw conclusions with any validity.

Re:Clarifications

[pubudu]

2. Potentially Applies Throughout the Common Law World.

The most significant cases for this are The UK (except Scotland), the US (except Louisiana), Canada (except possibly Quebec), Australia and New Zealand.

While the United States (except Louisiana) uses a common law tradition, there was a major effort undertaken after the Revolution to codify common law. Our practices may still reflect common law, but the law itself does not unless specifically written into a statute (this is why common law marriage is a valid marriage only in those states which recognize it). There would also be a problem with enforcing a common law which is not in the publicly available statute codes: it could be argued that it represents an ex post facto law.

Now, some state might have included James' edict into their law codes, but it's unlikely.

Re:Clarifications

[TekPolitik]

While the United States (except Louisiana) uses a common law tradition, there was a major effort undertaken after the Revolution to codify common law.

I suspect your confusing criminal law (which has been widely codified) and torts law (which has not). Torts law by its nature is not particularly amenable to codification, and the torts law used in 49 states of the US is still Common Law, and is still influenced by what goes on in other jurisditions.

Re:Clarifications

[pubudu]

I suspect your confusing criminal law (which has been widely codified) and torts law (which has not).

You're right, but the majority of posters here are hoping for some criminal penalties, in which case this law could not apply. While one might use it as a basis for a civil suit, you are there required to actually prove damages. Considering that compensatory damages probably wouldn't exceed more than a few cents per spam, and the government wouldn't help you track down who sent the email, it not being a criminal matter, this doesn't seem a practical solution. You couldn't sue one spammer for the damages caused by all spammers, and the amount of damages would put it in small claims court, where punitive damages are heavily limited if allowed at all, depending on the state.

Since the codification of common law prevents you from getting them for criminal trespass in the U.S., I don't think this law can be applied here.

Re:Littering

[Dimensio]

Possibly file charges (perhaps in small claims court) for trespassing and vandalism (ie, littering on your property) or, depending on where you live, use physical violence to remove her from your property. Personally I believe that the latter is perfectly acceptable if other, more reasonable, effort has already been made and failed.

_Unpopular_ laws accomplish nothing

[BattyMan]

I blame the idiots that pass laws just to try to score a few public relations points...

An anti-spam law would NOT fall into this category.

Nobody _really_ hates speed limits, we just disagree on the numbers. Most bust them up at one time or another, despite vigorous enforcement. You can't, however, call them ineffective. Without speed limits, American freeways would look like the Daytona 500.

With the exception of the law-enforcement agecies which are now profiting from it, everyone is either neutral or bitterly opposed to marijuana prohibition. Marijuana use usually happens in private, making it difficult to enforce prohibition against it.

Similarly, sodomy laws are a joke, because the conduct is quite private, and the parties involved are unlikely to report it.

Clearly, laws against behavior which is undertaken in private, particularly by many, consenting, people, and perceived as harmless by the rest are counterproductive, in that they do not stop the "crime" and they _do_ undermine the authority of law. Prostitution statutes fall into this category.

OTOH, nobody objects to laws against murder or sexual abuse of children, because 1) these activities are obviously harmful to their victims and 2) only a tiny minority feels that this is acceptable behavior. Everyone _hates_ spam (except the miniscule fraction who are committing it), it's a completely public activity, and nonconsensual on the part of the recipient and the relays in the middle. Laws against spam (unless totally botched in their construction) would be extremely popular. Everyone would help the law enforcement agencies in the execution of these laws.

And harsh penalties would be appropriate. That spammer isn't sending out _one_ toner ad, he's sending out a million.

Re:Legality _does_ matter!

[fishebulb]

termites are a natural part of an enviroment. SPammers are not, destroying spam would not ruin the "ecosystem"

I wish them luck, in the meantime...

[Spoing]

...I use a few tactics to thwart the vast majority of this dreck personally.

First, the basics;

1. Turn off HTML email viewing.(*)

2. Turn off return reciept.

   If you have your own domain, do not reply to innocent-sounding email that looks like it was sent to the wrong mail address. 9x out of 10 it wasn't. They are polling for your valid address and just want a response so they know who really should be spammed.

Next, the filters (personal, not network wide -- sorry!);

1. If the To:/Cc: fields are directly to one of your valid accounts (not a mailing list), allow it through.

2. If it is From:/To:/Cc: a known good address or list, allow it through.

   All other mail is shuffled to Spam.

None of these filters will prevent spam from simply being mailed To: you directly. Yet, if you check your spam headers you'll see that only a small sampling actually do this -- they don't want to send out individual messages. It raises thier profile too much.

Also, yes, this will not catch the case where you are added innocently to a mailing list by an unknown sender. That's why I suggest that you do not delete the spam automatically. (I've determined that most folks who do this are people I don't want to talk to anyway, so it kind of works out even if the message isn't delivered.)

Now, if you want to apply more sophisticated filters, go ahead. A blank or missing "To:" field seems to be popular with spammers these days.

For me, I'm not going to bother. I fiddled around with those for about a year four years ago and ended up deleting good mail accidentially and learning more about Procmail -- not that learning about Procmail is a bad thing.

* To prevent someone from figuring out that your address is a good one, ofcourse. Viewing rendered HTML email may, depending on the viewer, give a hint that they have a valid address. Some mail programs do allow you to render the HTML without fetching resources from a remote server. When in doubt, do without.

Re:what does the legality matter?

[Arandir]

Thus, legislation is the ONLY way to combat it.

Anything that will raise the cost of sending spam will reduce it. Legislation is one way, but it is not the only way. Right now sending spam to one million people costs just as much as sending a single email to your grandmother. Bandwidth needs to become a commodity bought and sold in a market environment. The silly notion of unlimited bandwidth for $xx a month has to stop. The charges would be small enough that it wouldn't affect you or I, but it would cause the spammers to start trimming their lists and properly targeting their recipients.

Re:The US is not England

[.sig]

No, the fact that we have formed a new country does mean that we don't accept English law.

When this country was formed, the founders based their new laws on their idea of what would be fair and just. Now just by human nature they would be keeping some of the laws that England had, after all they weren't all bad. However, even in these cases they didn't simply copy the old laws into the new books, they weren't that lazy.

Besides, the laws are defined solely on how the courts interpret them. Just because our laws have similar origins does not mean that they have stayed that way. As dynamic as they are, odds are you wouldn't be able to find a single law that is completely identical between the two countries.

Am I the only one who doesn't think this is common sense? (and not trolling)

Is trespass the right doctrine?

[btempleton]

The EFF has been wrestling with this issue and come to the conclusion that trespass is a risky doctrine to use in the fight against spam.

The problem is that the internet runs entirely on private property. It's not really possible to use the internet without using the private property of others.

The norm on the internet was "I pay for my half of the connection, you pay for yours" and it works pretty well.

If we define the use of somebody else's property with packets to be potentially trespass, what does that mean? All internet traffic can be considered trespass. Is this how we would want to regulate communications -- speech -- one of the most precious rights we have?

Since all traffic flows on somebody else's private property, to define unwanted traffic as trespass is to say all traffic must be consensual. Is that how we regulate communications in the real world? Is that the tradition of speech regulation?

If I send you a message that annoys you -- not a spam, but say a flame because I don't like what you said on slashdot -- should we risk that you can define that as trespass because you didn't want it, you didn't put your machine on the net so people could flame you?

It seems like a dangerous path. There are other solutions to spam that don't involve it.

Re:Is trespass the right doctrine?

[TekPolitik]

The EFF has been wrestling with this issue and come to the conclusion that trespass is a risky doctrine to use in the fight against spam.

The EFF's reasoning is bogus, and relies on manifest ignorance of the rules of this tort. Of course you're about to find that out just how wrong in the Supreme Court of California.

Perhaps I was mistaken...

[ColGraff]

but what I learned in high school was that the Magna Carta was forced on the king by nobles angered by what they perceived as the king stripping them of some of THEIR rights - the commoners weren't involved.

Re:A catch-22

[Sabalon]

I wonder if spam and corn is one of Hormel's new recipies?

Re:what does the legality matter?

[cduffy]

No, similar concepts don't apply, because with snail mail the costs are paid by the sender. With email the costs are purely externalized. From a simple economics perspective the two are worlds apart.

I agree that red tape isn't the way to do things -- I never was arguing that! Look at HashMail; it can be implemented without any government involvement whatsoever; email from people who don't use it simply won't be accepted unless those people are explicitly whitelisted. Teergrubing and whatever else I mentioned are alternate means of handling the situation from a purely private perspective. My mention of government intervention in handling externalities was provided simply as background in discussing why means other than letting the market decide are required in cases where costs are externalized and so producers can take actions which cost them very little but cost society a great deal.

Re:what does the legality matter?

[Arandir]

One million emails at one cent each costs $10,000. For you and I, with our puny few hundred emails a month (at most), pay a couple of bucks. That 10K though is a huge margin.

Market forces DO work. That's the whole reason we have spam in the first place. The cost of sending spam is zero! You can't get a bigger market incentive than that! In the meantime, we pay exactly the same fees that the spammers do for using a fraction of the bandwidth they do.

Re:Examples of Convictions

[Stone Rhino]

Excuse me, but the fourth URL you listed is the new york state bar association's Mock Trial case. While tthis may correspond to real life, it is not an actual example of a computer trepass conviction, especially considering that the trials are written so that they may go either way. How do I know all this? Because I am on my school's Mock Trial team for this year. This year's trial again involves issues that slashdot certainly would care about, including privacy and identity theft, but I digress. In summary, your fourth URL listed is irrelevant.

Trial by Combat....

[billstewart]

No, you simply have to resolve the dispute properly. Some of the Commonwealth and former British colonies have updated little-used parts of common law, but some things occasionally fall through the cracks. A friend of mine relates a story, probably somewhat embellished in its trip around the SCA, about a friend in Maryland who was in a civil court case he wasn't likely to win. His attorney (licensed in Maryland) was also an accomplished heavy-armor swordfighter. When it was time for his opening statement, the attorney approached the other side's attorneys, threw down his chainmail gauntlet, and demanded his right of Trial By Combat, which had been part of English Common Law when Maryland revolted against the crown in 1776, and therefore was still active (even though the English Parliament abolished it sometime later), since it hadn't occurred to the Maryland legislature that it was something they should also abolish. The attorney making the demand, who was acting as Champion for his client, was a Large Dude, while the other side's attorney was an Old, Non-Large Dude. Some legal discussion ensued following this action, and at least some renditions indicate that the judge was a spoilsport and wouldn't let them follow through properly. Others indicate that the legislature may have since fixed this bit of old code.

Re:what does the legality matter?

[Arandir]

I think you've missed my whole point. The whole internet is unbalanced from top to bottom. You can't fix one part of it without affecting all of it. This will cause changes to occur. Some will be good and others will be bad. What will NEVER happen, however, is a fix to spam that does not affect everything else in the mix.

Spam is like a disease. You have three basic choices:

1) Status quo. Ignore the disease and do nothing.

2) Treat the symptoms. Pass a law and put a bandaid on the wound.

3) Treat the underlying disease. As with all diseases, the cure will have side effects.

My proposed cure, since no one yet has proposed anything other than a legal bandaid, is to charge for bandwidth. This is sensible economically, since bandwidth is a scarce resource and has real costs. The current method of charging everyone a flat fee for internet access is not working. The technical details will need to be worked out, but the basic idea is sound. I fully expect it to happen with or without my input. The market forces demand it. No matter how much you disagree with market forces, they are a reality that won't go away just because you manage to get a law passed. Market forces are causing spam, and they can be used to reduce spam.

There are, of course, side effects to this cure. I am not denying them. Our memberships in mailing lists might have to be paid for. I'm willing to do this. Are you?

Re:Littering

[TekPolitik]

She keeps throwing those idiot catalogues in my driveway. I've already informed this woman that I am not interested in this crap and don't want them on 3 different occasions. What can I do?

You can file an action for trespass to land in your nearest magistrate's court. File for both nominal damages and an injunction. This is a no-brainer. You'll need some pleadings - plead as follows:

1. that on Day, Month DD, YYYY, the defendant did intentionally, and after the express retraction by the plaintiff of any implied consent that may have existed, throw advertising material onto real property in the possession of the plaintiff;
2. that this is a tangible intrusion that amounts to trespass to real property; and
3. the plaintiff seeks an order for damages, costs and an injunction to prevent further trespasses to the property

One other thing - the advertising material would need to have been thrown onto the driveway inside the property boundary - if it's outside that boundary, it may not in your possession, and even if it could be argued it is you'll need a lawyer to argue it for you.

Don't use physical force (as one poster suggested) unless she actually crosses into your property herself. If she does, you can use as much physical force as is necessary to eject her.