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WA Wins First Case Against Deceptive Spammer
GPFCharlie writes "The Seattle Post-Intelligencer is running this article about the first victory by a US state against a spammer. Apparently the judge ruled that a civil trial was not even necessary, since the state had already proven their case. The law was upheld by the WA Supreme Court and an appeal was turned down by the US Supreme Court. Next phase: penalties. How about 5 million hand-written apology letters?"
...being put on your apology letter mailing list!
- Peter
"Right now it's a bunch of states making their own laws about how people in other states can do business," Crandall, his attorney, said. "It's a profoundly interesting case about whether the government can regulate business on the Internet, or at least regulate equally."
No, it's Washington state saying how you have to do business in Washington state. It's not like they don't already do this, in every other area of business. If you want to sell something in Washington state, you have to abide by their laws. This isn't new. If you don't like their laws, don't sell there.
And I don't think you're going to get much sympathy by whining "but how do I know what state you're in, if I'm indiscriminately spamming you"? ;)
The Debian "advertising" policy is listed below:
"This policy is intended to fight mailing-list "spamming". "
"The Debian mailing lists accept commercial advertising for payment. The fee for advertisments is a donation of USD 1000 or more to "Software in the Public Interest" (SPI). One donation per advertisement, please. If you prefer to pay in arrears, simply post your advertisement to the list, and the list operator will bill you USD 1999. The list operator will donate this amount, minus the expense of collecting it, to SPI. Please note that the lists are distributed automatically -- messages are generally not read or checked in any way before they are distributed. "
"The act of posting an advertisement indicates your willingness to
accept responsibility for the fee,
indemnify the list operator against any legal claims from you or others in connection with your advertisement, and
pay any legal and business expenses incurred in collecting late payment.
Our liability to you is limited to a good-faith effort to deliver your message. "
"Reduced rates and/or waiver of fee are available for Debian-related advertisements. You must consult the list operator in advance of posting for any reduction or fee waiver. "
I could not find confirmation, but I have heard that Debian was once able to collect a useful server as the only asset that a spammer had to pay under the terms of this policy.
"I'm sorry. If you can find it in your heart to forgive me, send one dollar to Sorry Dude, 742 Evergreen Terrace, Springfield. You have the power."
IMHO a lot of spam does fall under the category of "free Speech"
Your opinion is just wrong.
Spam has NOTHING to do with free speech, any more than any other type of harrassment.
Free speech is the right to say whatever you want.
Free speech is NOT the right to force people to listen to you, nor is it the right to force people to PAY to listen to you.
Spam is harrassment.
Spam theft of service.
Spam is NOT speech.
I've sued nearly 20 spammers in WA Small Claims Court this year. To date I've won every case, or settled out of court. It's good to see this win at the higher court level, but it's not really news to me.
Almost every spammer violates the law (RCW 19.190) because even if the return address is valid (e.g. optin@spammers.com) they are always forged return addresses because the actual mail comes from Korea or China or a dialup somewhere.
Having said that, I do sometimes get spam from more 'legitimate' spammers (i.e. ones who actually have a website, usually mentioning keywords like CRM and direct advertising). They send mail with their own domain name, and they send it from their own servers. It's probably less than 1% of the total right now. Those emails don't fall under RCW 19.190.
I rarely go after the actual spammers but instead the companies that hire them. The spammers themselves are service and/or judgment proof, whereas the companies that hire them are usually real companies registered to do business somewhere. Having said that, you would be surprised how many companies that spam go out of business shortly thereafter. It appears to be an act of desperation for many.
I've collected over $5000 in settlements and I have $7000 in judgments outstanding. If they don't pay up, I sic Dun and Bradstreet debt collection on them so at least their D&B credit record will be ruined for all time (an unpaid court judgment is considered a Very Bad Thing on a businesses credit record). Total cost to me per case is less than $50 usually, so I can afford the unpaid judgments.
I understand the free speech arguments, but RCW 19.190 is pretty specific. First, it must be unsolicited commercial email. Secondly, they must have a misleading subject or forge the addresses. I have got spam pitches from religious types and politicians, but neither falls under RCW 19.190. And thirdly, there is a registry for WA resident to enter their addresses (http://registry.waisp.org). If the spammers are really honest, they could listwash us all from their lists. Of course, they never do this because they are always buying the latest and greatest CD full of email addresses.
It's the old rule of Garbage In Garbage Out. If you collect 20 million email addresses at random, don't complain to me about how hard it is to check them!
There are an increasing number of 'victories' in the war on spam by government ; but overall the number of Spam sent is increasing.
While the government can fight blatent abuse of a person or companies communication rights ; they have not (and I believe they can not) come up with legislation that actually makes spam illegal while allowing all legitimate communications to be made unhindered.
The solution to Spam and the new 'free marketing' medium of the Internet really is to use an Authentication system for all communications that are prone to abuse ; and that would work for telephones as well.
What we need is an Authentication System in the email protocol itself, and that is what my company - SolidBlue is working on over the next year or so. Interested researchers can email us and we'll see if we can get an RFC group started.
Ace
Please, think carefully before invoking Big Brother to solve your problems!
Using the term "Big Brother" (from Orwell's 1984) is simply inflammatory. From now on, please use "the government" when referring to the government.
Sending e-mail should not be a crime!
So where does all of this end? If they can steal my bandwidth, time, and storage with spam, what's next? Should we repeal the junk fax law so that they can steal my expensive thermal paper, too? Should we take restrictions off of telemarketers so that they can call me collect and mis-identify themselves? Why not just let businesses advertise by throwing a brick through my window with a flyer attached ("Window broken? Call A&A Glass for a free repair estimate..."). While we are at it, maybe the USPS should deliver anonymous-sender advertising at no cost and just force me to pay the postage on delivery -- since that's analogous to what happens with spam.
Commercial speech does not (and should not) enjoy the same level of protection as non-commercial speech. In Central Hudson Gas & Electric v Public Service Commission the Supreme Court announced a test for evaluating commercial speech regulations that would be used in many subsequent cases. The Central Hudson test recognizes the constitutionality of regulations restricting advertising that concerns an illegal product or service, or which is deceptive. For all other restrictions on commercial speech, the Court's test requires that the government show that the regulation directly advances an important interest and is no more restrictive of speech than necessary.
Preventing the theft of millions of dollars from U.S. citizens and businesses represents an important interest and making e-mail advertisers use opt-in, correctly identify themselves, and provide automated systems for address removal is no more restrictive than necessary. When a sender falsifies e-mail header information and provides a forged from:/reply-to: address, that's deceptive and passes the aforementioned Central Hudson test as speech which can be constitutionally regulated.
This seems a lot like what we all complain about when it deal with other sorts of laws -- "but you can't do that, what he did was legal in Russia!"
What if a U.S. state passes a law regulating what sort of material it is permissible to transmit to their citizens. Assuming the law were not struck down as unconstitutional, should everyone in the U.S. now have to follow this state law, to make sure that they don't accidentally transmit banned material to residents of that state (for example, by placing it on a website where a resident of that state could access it)? This would end up with the result that everyone must follow the union of all state laws (thus the most restrictive in each category). Which is already happening with spam laws, which I don't see as a good precedent.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
How about 5 million hand-written apology letters?
Hello Mr. Donkey.
This letter is not junk mail! You have received this because you have chosen to opt-in to receive special apologizes from this company.
We sincerly apologize for sending you unsolicited e-mails informing you of exciting offers for new companies.
By receiving this apology letter, you have been selected by our database to receive an unlimited amount of incredible offers by direct mail from super-value-offers direct.
To discontinue receiving these apology letters, please point your browser to 192.168.0.4/unsubscribe
The Internet is generally stupid