Fax-Spammers fax.com Sued For 2.2 Trillion

linuxwrangler writes "Fed up with junk faxes which have been illegal since 1991, a Silicon Valley businessman has launched a lawsuit against junk faxer fax.com. Steve Kirsch seeks the damages provided in the law: $500/fax for the last four years. If certified as a class-action on behalf of the 3 million receipients of the faxes that fax.com claims to send each day the total damages would reach 2.2 billion even without invoking the "triple-damages" clause for "willful" violations. Federal regulators hit fax.com with a 5.4 million fine just two weeks ago after the company ignored numerous warnings from the FCC and was found to be in "flagrant violation" of the law. Fax.com maintains that their actions are protected by the constitution and court decisions in this case could lay the foundation for the future of junk email regulation"

Comments

1st amendment rights?

[Theaetetus]

Well, they're claiming they can do this due to 1st amendment rights, which do indeed give them the right to publish whatever they want...

However, they should have to pay all of our phone bills and paper costs... plus trash bags, disposal costs, a reasonable fee for our time disposing of their waste, etc.

-T

Re:1st amendment rights?

[Squareball]

Thank god that the first ammendment only gaurantees the right to speak, not the right to be heard!

Re:1st amendment rights?

[bleckywelcky]

But see, the problem with the faxes is that they are imposing their message upon us. Fine, they can express whatever they want through the 1st amendment, and whoever wants to listen can, and neither the broadcasters nor the listeners can be barred from doing so. However, people can also choose to not listen. But, by sending a fax to a person who does not want to listen to your message, you are forcefully making them listen to your message. This is an extension of expression that the 1st amendment does not cover. The first amendment was created as an agreement between people and the government - the government can not bar anyone from expressing themselves. However, junk faxes are between people and people (the company being composed of other people, executives, boards, etc) and the 1st amendment makes no guarantees that you have the right to express yourself to any other person. In fact, people deny the act of expression to other people every single day. Don't like where a conversation is going with another person? Walk away - you are not allowing them to express themselves to you. Don't like something you're reading? Throw it away - you are not allowing the author to express themselves to you. Even companies deny expression to employees every day. If you voice an opinion that the company doesn't like, they fire you - you are no longer allowed to express yourself to or at the company.

However, how can we deny expression by one company trying to fax us something while allowing expression by another company (or indivdual) trying to fax us something. We can't just simply walk away from the offending company (unplug the phone line) as that disables us from receiving expressions from others. Well, we could just contact the offending company and let them know that you no longer wish to allow them to express themselves to you, but my guess is that asking doesn't work (otherwise we shouldn't have a problem here). So, you need some way to bar them from expressing themselves to you... a government - which is the sum of all the people in the country, if the offending company wants to live in our country, they need to obey our standards and rules - is used. So, the government (who has the power) acts on behalf of the individual (who has no power) to enforce the wishes of the individual upon the offender. And the individual's wish is finally fulfilled.

The problem we now run into is that the offending companies try to spin the situation into an attack on their 1st amendment rights by the government. Instead of telling the public that the government action being taken (or attempt at being taken) is on behalf of another individual, they claim that the big government is just trying to shut them down while violating their 1st amendment rights. But, the truth of the matter is that the government is not even involved with the company, it is acting as an agent on behalf of the individual and solely represents the invidual.

The 1st amendment does not guarantee one party the right to forcefully deliver their message to another party, it simply guarantees that the government, acting on its own, can not deny a party the ability to express themselves to another party if both parties wish to be involved in the expression.

Everyone start saving your SPAM

[E-Rock-23]

If you do, and regulations go into effect regarding SPAM e-mail, then each and every one of us has a case. Unless the legislation that comes out of this suit has a "non-retroactive" clause (or something along those lines), then we can all take out our SPAM-induced "Net Rage" out on the sorry saps that pull this crap.

After all, isn't that the American dream? Turning a profit on the misery of others? Won't it be nice to turn the tables on these low-lifes and profit from their misery?

And what, praytell, will become of the sneaky bastards like the infamous Crushlink, the ones that lead us on into giving up our addys so they can sell the list to the SPAM crowd? If I were a SPAMer and fax.com loses, I'd be running for the hills...

Re:Missouri doesn't say that Junk Faxes are illega

[Anonymous Coward]

That just says "we can't start new legal action under this law while a federal court is reviewing whether this law is legal."

Why don't you try other routes? Specifically, a harrasment case of some sort. Walk into small claims court, claim they are harrasing you, get a temporary injunction against them. Suggest others to do the same.

I can't imagine that not working; if a random person were calling you on the telephone every morning at 3 am, the stalker laws would come down on them quite painfully.

Re:"Firewalls" for fax machines?

[rmohr02]

I think I'd go for a plain fax machine and join this lawsuit when I get fax spam.

Yes, thats TRILLION, twelve zeros.

[Alsee]

The article says FAX.COM claims it send 3 million faxes per day. The lawsuit is for the last 4 years. At $500 per fax.

3,000,000*365*4*500 = 2.2 TRILLION DOLLARS.

And then theres the possibility for TRIPPLE DAMAGES if the judge rules the violations were willfull. It's completely up to the judge, but IMO (IANAL) FAX.COM's actions were blatantly willfull as defind by the relevant law. If convicted, not assessing triple damages would be a gift.

We have a fax machine. We've been getting junk faxes semi-reularly. With luck maybe we'll be getting a peice of the pie when this is over. I hope it's triple damages (grin), not that it would change the size of the check. I'm sure single damages is enough to bankrupt them nearly a million times over.

-

Re:5.4 million?

[SlugLord]

I'm not sure fines are punitive enough to stop spammers... perhaps castration would be more appropriate.

Seriously, I don't think the spammers realize/care how much actual damage they do, and whatever penalties are in place don't seem deterrant enough. The same goes for email spammers and phone solicitors. In theory, if I tell a phone solicitor to take me off their list, they have to or face a fine, but the fine is 500 dollars. What company would even bother for a 500 dollar fine. The majority of people wouldn't bother pursuing the 500 dollar fine, so it doesn't really accumulate for the company, and a puny fee like that is hardly noticeable.

Fines for spamming (of all types) need to be increased, with the possibility of jail time. The same goes for product recalls, but that's another topic.

Bad logic

[achurch]

Many others have pointed it out as well, but the critical difference between junk (snail) mail and junk faxes is that junk faxes use up actual resources of the recipient, namely paper and ink, while junk mail is paid for entirely by the sender and does not cost the recipient anything (other than the time to throw it away, which is generally considered insignificant--whether that's proper is another question). To draw an extreme example, because I can't think of a better one at the moment, it's like how yelling "Fire!" in a crowded theater is illegal; the right to free speech is not an unrestricted right.

Re:It's that new math

[linuxwrangler]

2.2T or 6.6T, while being the potential penalties the law specified, are naturally uncollectable.

One could, however, bankrupt the company and send a message to any other scumbag who thinks this is a good business model which is, of course, the goal.

Re:5.4 million?

[Scrameustache]

Fines for spamming (of all types) need to be increased, with the possibility of jail time.

Harder fines, sure, but jail time? No.

I don't think putting people in jail for every stupid thing is a good idea. In fact, I think there are many "crimes" that should not be punished by jail time (how many pot heads really deserve to be in jail, seriously?).
Rapist, murderers, muggers, all those people deserve to be taken away from society for a while. But minor crimes, as annoying as they might be, don't warrent imprisonment. You could make 'em do community service, make 'em bankrupt with huge fines, but don't waste precious jail space for small things.

Plus, do you really want the spammers of the future to have aquired skills like fashionning weapons out of toothbrushes or how to take advantage of a dropped soap in the showers? You'd just make 'em angrier...although maybe the spam about penis enlargement would go away. ;- )

Re:Big business trumps first amendment issues

[walt-sjc]

No. Junk faxes are illegal because it shifts costs onto the recipient.
Junk faxes use your paper / toner / ink, and tie up your fax line for other IMPORTANT business stuff. Paper / toner isn't free. The average cost on a business class laser fax is around 6 cents per page. Multiply that out by 10 spam faxes a day, 365 days a year, times the number of fax machines your business has. Factor in the potential lost business due to not being able to receive an important document.

Please inform us on all the technological measures to stop fax spam at the receiver.... Oh. There AREN'T any?

Your right to free speech ENDS at my door. You can deliver me all the bulk US mail you want, and I have the right to heat my house with it. I also have the right to call any telemarketers four letter words until they hang up (Telemarketing should be illegal as well. It's an intrusion on my peace and quiet. For now it's not, hpowever many sgtates are begining to enact laws that restrict it much more.) Email spam, like fax spam, also forces the cost on me as I am forced to pay for bandwidth / server storage. Yeah, it's not much, but it's getting MUCH worse, and the costs are starting to be significant. Spam was so bad for AT&T that it took their servers down for a couple days a few months back. 15% of all email on the net is now spam according to Gartner, and it's increasing at a rate of 5 fold per year.

This free speech argument is a red herring anyway. It's not Free as in beer, it's Free as in Freedom in content. Freedom of speech allows you to stand on a street corner and say pretty much anything you want. You can also publish a newsletter, put up a web site, etc. Basically, you are free to get your message out but there are reasonable limits. For example, free speech doesn't mean that Kinko's is required to provide you with free photocopies to get your message out. That's essentially what's happening with fax spam, or email spam, except that it's not Kinkos paying, it's YOU, and ME. So yeah, you have freedom of speech as long as you pay for ALL costs associated with getting your message out.

Telemarketers use up resources too...

[Max Nugget]

(Slightly O/T) Has anyone else noticed that in the past year or so telemarketers have started leaving messages on answering machines? This seems to be an increasing trend. For instance, today I came home to find a 75-second solicitation for a trip to Disyneyland (apparently it's their 100th anniversary, according to the message) on the anwering machines for both lines in my house. Now, granted, this may not be a huge problem for most people, but I've actually had a number of occasions where my answering machine has filled up with telemarketer messages and caused me to miss "real" messages as a result. In my situation, and that of others who have similar problems, should I not be able to argue that the inconvenience of telemarketers (or at least their recent practice of leaving messages)is not "insignificant"? If I have a relatively limited amount of recording space on my digital answering machines and I'm getting numerous 60+ second advertisements every day, I think this is quite unfair, and a good example of the not-so-insignificant problems telemarketing perpetuates.

Totally irrelevant to e-mail

[Anonymous Coward]

...and court decisions in this case could lay the foundation for the future of junk email regulation...

No they couldn't. As we've seen time and time again, relevant decisions in other mediums--even similar mediums such as fax, phone, or cellular--always seem inapplicable to the Internet. For some reason, our legal and judicial systems incorrectly think that anything having to do with this new-fangled Internet thing must require its own special and distinct legislation.

More evil ideas

[Wolfier]

Maybe all of us can set our spam filter to forward our spam emails to sales@fax.com...after all, it's protected free speech.