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Michigander Beats Spammer With "Junk Fax" Law
TastyWords writes "According to this link, it's possible to apply the 'junk fax law' to successfully sue a spammer in small claims court. For those who are stuck in states which either have worthless (or near-worthless) anti-spam legislation, this creative approach of the law presents a creative method of turning the table on those who choose to spam first and ask questions later. All of the details are available for enterprising anti-spammers!" Update: 02/25 00:30 GMT by T : OK, so it's Michigander, not Michiganian. Too long as a Texon, Marylandite and Tennesseenaut.
At my work, my bos is collecting all of the junk faxes he gets, and someting he is going to take all of these to small claims court. This is great for a precident to be set against an online junk emailer. The problem is identification, though.
If I have nothing to hide, don't search me
They didn't appeal, I got my check. They also sent out a contract thing they wanted me to sign as a disclaimer of responsibility and liability and all this nonsense. I talked to their attorney and he said it was standard. I said, "Not standard for me and I'm not signing it, I will be depositing your check however." He wasn't too happy about that, ... Iwonder what was in the disclamer?
I hope this has some affect but I don't see how it can. If spammers can be sued in Michigan, or even in all of America, what stops the spammers using nations do not recognise US law? Instead of Sears now shutting down it's spam operations (which I assume are incredibly popular) won't it just contract it out overseas through some shady company? Surely it must be proved that they were indeed the originators of the spam?
--
On Slashdot I'm a lawyer.
Although I think laws such as the junk fax law are a step in the right direction, the problem I see with most spam is that the headers have been forged to the point of illegitimacy. Sure, if they include a link to a website, you could go after the person or people listed in the WHOIS record, but it would be easy for the administrative contact to claim that he or she didn't send the spam.
Sears is an easy target -- they probably sent semi-legitimate spam that included contact and/or removal information, as well as the Sears website. However, I doubt that $500 will steer Sears in the right direction regarding spam. For $500, it's easier for them to write a check than to pursue it in court. I'd guess they made several thousand dollars off the spam mail, and that the $500 was written off as a cost of doing business.
My point is, that between completely illegitimate spam that doesn't even have any real contact information, and companies that make a lot of money off of spam and who don't mind writing a $500 check every once in a while, this law won't be very effective.
I will continue to argue that spam is a technical problem and needs a technical solution to solve it. Ultimately, even if the big companies like Sears stop spamming, there will always be the spammers who send out 100 million penis enlargement spam mails with fake headers and fake return addresses that render the spam nearly impossible to trace. The illegitimate spam problem won't be solved by laws -- it will be solved by the intelligence of the Internet community. I'd rather see this solved by technical prowess than by laws that will only encourage spammers to fake their mail headers to avoid lawsuits.
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"Under United States law, it is unlawful "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement" to any "equipment which has the capacity (A) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper." " Seems like this would be a nice source of spare income if it could be done reliably, but do I have to use a modem? :P
I've always suspected that it will come down to small claims court to bring spammers down. And it won't be attorneys, it'll be the little guy like you and I.
Here's why:
1. We have the time. A reward of $500 a day isn't too bad, tax free, I assume. Getting the headers, and finding a local spammer is the most difficult part of our task.
2. It pays. Illegal acts are being committed, even without the fax laws, there are truth-in-advertising laws, smut laws, etc.
3. Spammers are in your state. The sheer volume of mail sent means you're likely to eventually getting spam that originates from your state. This is important as most small claims courts will require both parties reside n the same area.
I'm employed, not really worth my time, but there's a business model and a "Support-your-American-Economy" cheeriness about this. Now go take on the day!
fslg503-985-8686503-985-8686503-985-8686503-985-8
I remember when that whole stupid PC thing started, 'michiganians', huh!
What I'd like to know is if something like Junk-Fax can be used to bust michiganoid Alan Ralsky. On a per-item basis, one should be able to seize his house, eh?
A feeling of having made the same mistake before: Deja Foobar
Here's my canned reply for these:
....
;)
I would like to see citations (especially case law) that specifically address your claim that 47 USC 227(a)(2)(B) is applicable in this case. In particular, such legal advice as I've seen states that this is *NOT* applicable to E-mail in general, and for this statute to be applicable, there would need to be a finding of fact that E-mail is legally a FAX. If E-mail *was* ruled to be legally fax, then you would have to comply with all the legal requirements that would entail.
In particular, I suggest that you also read 47 USC 227(d)(1)(B),
which states:
(d) Technical and procedural standards
(1) Prohibition
It shall be unlawful for any person within the United States -
(A)
(B) to use a computer or other electronic device to send any
message via a telephone facsimile machine unless such person
clearly marks, in a margin at the top or bottom of each
transmitted page of the message or on the first page of the
transmission, the date and time it is sent and an
identification of the business, other entity, or individual
sending the message and the telephone number of the sending
machine or of such business, other entity, or individual.
Be careful what you ask for, you may get it....
(Hint - was *your* e-mail stamped with the originating phone number at the top of each page?
Over 10 years ago (back when I still lived in Michigan), a resolution was adopted by the state legislature that formally dubs residents of Michigan Michiganians.
Yeah, it's a stupid monkier and no one follows it, but it could be worse. The 2nd choice was "Michiganeers".
The person who spearheaded the legislation found being called a duck insulting.
I'm really surprised that a company as "prestigious" as Sears is sending spam. I would have been interested in seeing the full headers.
The man who trades freedom for security does not deserve nor will he ever receive either. - Benjamin Franklin
Some will say the TCPA applies to fax, some will not. Most will not -- most don't even know much about it, let alone have a willingless to stretch it to define an E-mail as a Fax.
Sadly the TCPA is fairly toothless. Yes, you can sue for $500 and you might win. I have done so myself, and collected. But after spending several hours of work, and the average amount of time spent per successful collection is normally high enough that it's not worth your trouble.
Some small claims judges think you can't sue somebody out of state, some thing you can. Even on spam laws where there isn't the TCPA question.
There is a valid question of whether you should be able to sue somebody out of state in small claims court for $500. Think about it -- it costs $500 at least to come and defend yourself in an out of state case, so how can you win, even if you are totally innocent?
How would you feel if you -- not a junk faxer at all -- got a summons to appear in court on the other side of the country to face a $500 payment for junk faxing? You could go and defend yourself, but it would cost you way more than $500 in costs, don't even talk about your time. You can't send a lawyer, if somehow that would save money.
So it's tough to figure out how to allow this. And spammers and junk faxers are rarely local, though sometimes they are.
What if you took the risk that if you sued an out of state spammer, you would have to pay his expenses to come out if you lost, or take them out of your winnings if you won? I would not.
Has it been over a year since you last donated to the Electronic Frontier Foundation
...and start an organization that gathers the email/snail mail addresses of spammers and signs them up for every junk mail publication known to man.
IANAL but I believe that the reason he was able to sue Sears in small claims court was the fact that Sears was doing business in the same state.
If the party you are sueing is out of state, you have to take the matter to district court. The filing fee is usually only a little more, but if you don't win your case, you can expect to be held accountable for the spammers attorney fees.
-Scott scott@surrealistic.org
What I find most interesting about this is not the use of the junk fax law, but that Mark was able to sue Sears about it.
This is possible under the federal anti-fax spam. Hooters was fined over a million bucks for a fax spam run by a marketing company that went out of business before the complaint was files.
If the company actually being advertised is aware of the ads, they are responsible under the fax spam law.
Amazing, he did the right thing. He modified his computer until it fell under the fax machine law. He uses a modem to connect over telephone lines (not cable, not dsl). He prints his email to paper, and he has fax software installed to send scanned paper documents to other fax machines. So his equipment can be considered a fax machine.
We saw a similar thing recently, with Lexmark. Everybody can produce a plastic box that fits into Lexmark printers, and nothing can stop them from doing so. Except Lexmark & the DMCA - Lexmark found that they have to mix the plastic box (which is not protected by law) with an intellectual property item (which is protected by copyright) and an access restriction (which is protected by DMCA). Glue all 3 things together, and voila. You've got a plastic box which can not be legally copied.
So, when the law works AGAINST us consumers so often, why shouldn't it work FOR us once or twice?
Lex Talionis, the principle of an eye for an eye, is a morally bankrupt code of law we've been moving away from for the past few thousand years, thankfully.
Wrong. Lex Talionis was the principle that you take NO MORE than an eye for an eye - promulgated as an "improvement" in an era where the response to losing an eye (or a purse) might be to do in the alleged perpetrator and confiscate all his worldly goods.
It's morally bankrupt, all right. But only to the extent that if the theif only loses what he stole, and has a nonzero chance of getting away with it, thevery remains a profitmaking enterprise despite full enforcement of the law. So it becomes an endorsement of theft as a lifestyle. This is why there are "puntitive damages" - extra penalties to punish the perpetrator (thus making continued misbehavior a losing proposition even in with imperfect law enforcement).
None of which applies here. Applying "Lex Talionis" to the spammer would mean spamming him, rather than seeking compensatory and puntitive damages.
Bantam Dominique roosters crow a four-note song. Once you've heard it as "Happy BIRTHday" you can't NOT hear it that way
Said it once, said it a thousand times:
Unsolicited-fax law is based on theft of resources: you use my paper and my ink to print your "speech". This costs me the money that it should cost you [you should have to print it and send me a flier in the mail where you pay postage too]. So "we" made it illegal.
It is not a major logical hurdle to show the similarities of fax-spam with e-spam.
1) ISP bandwidth costs money. ISP's have to pay for enough bandwidth to handle their customers' traffic. If they had less spam coming into their network, then they would have lower bandwidth needs and could charge customers less. [You may not pay metered bandwidth charges, but your ISP probably does, and those charges ARE passed on to you and ARE built in to your flat rate]
2) Space costs money. A similar argument to bandwidth can be made for space. In addition, more people are metered by their space. Many ISP's provide a limited amount of space for email storage and additional space does cost money. Also, go off on vacation for a week and what happens when your inbox gets filled up? What's the cost of having all your legitimate emails bounce because spam used all your space?
When you consider the numbers (a recent article said 70% of email volume to hotmail is spam), it's plain to see the costs are not small.
Despite your narrow interpretation of what constitutes "cost", anyone who has taken a high school economics course knows that there is no free lunch. Someone is paying for the spam to reach you. And odds are that it's coming out of YOUR pocket, not the spammers'.
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I'm on broadband, my PC doesn't even have a modem in it. Even if I dropped a cheap fax modem in, the spam still doesn't *arrive* by phone line, so this law doesn't apply.
I am NOT a man!
I am a free number!
I really wish I could agree with you, that there is a tech solution to spam. But I refuse to believe that spammers can't in time outsmart a dumb filter. The filters performs very well now -- I use one -- but how long will that last? Few people are blocking spam at all, but when they do the spammers, like the Borg, will adapt.
Moreover, the mere transmission of spam is causing harm. It clogs the arteries of the Internet. The ISP's despise it, and spend money fighting it -- my money. Finally, even though I have broadband it takes significant time for me to download those extra 20 messages. Thanks to some idiot out there who typed in my email as his, I've seen geometric growth in spam lately, from maybe 10% to 60% of incoming material.
It is often argued that if you make something illegal people will just break the law, but that proves too much --- the same argument would supposedly undermine every law. Making it illegal will scare off the legit or semilegit bulk emailers, and it will make the shadiest spammer tempting targets for the prosecutors who has much better investigatory abilities than we do. I've talked to one of these guys, an assistant attorney general in Washington state, and was impressed how much work it took them to pin down one spammer. The state spam law was the hook they used to snare him, then they could also be sure to put him out of business. Believe it or not, there are smart people working for government, and in that case they even hired some outside help, PI's to track the guy down (he was quite slippery).
I don't like the idea that the defense to burglars is better locks, and I'm willing to ask for the government's help on this one.
If email sent to a given address is carbon copied at your end to an Email->Fax gateway, then their spam emails are indeed being sent to a Fax machine and are protected by the law.
The trick is to redirect messages that seem to be spam; you'll get the occasional false positive, which is totally fine; at the end of the day, you shred the positives and pick a spam to write up a small claim about.
Hell, you could profit off of this, with the quantity of spam that's out there. Make a living off of receiving spam, perhaps.
If it was accepted as a valid use of the law, that'd destroy the spammers pretty quickly, with the effort of Slashdot behind those fax machines.
Imagine the force of Slashdot behind an initiative to print out and submit a small claim for at least one spam a day, per user. Thousands of claims would be filed in a single day against the same small set of companies. Some spam companies pull you off their list if you bring legal action against them, so a few hundred Slashdot users stop getting spammed by someone.
Repeat this daily for a month; you can also file multiple suits per day, if you have time. The sky's the limit (and your 100% recycled printer paper). Make some friends at the court; people will consider you a superhero if you help shut down spamming as a profitable enterprise.
I hope this case is validated; if so, there's ways to make people listen. Perhaps file a thousand small claims in a thousand courts on a single day, providing attached to the claim a list of all thousand courts. Send a press release to the major papers (and the local papers), tv & radio at 12pm after the filings, and see what happens.
The way to end spam is to make it unprofitable.
Asking you to sign a contract when they lost in court, is pretty goddamned sleazy
Well, since it probably cost them $100 to have their in-house law department tell them it would cost them a couple thousand dollars to defend themselves in small claims court, management said "Dammit, isn't there something we can do?", and their lawyer said, "Well... we could try to get him to sign this waiver...."
Seriously I once lost a Sears card without realizing it, and the next month someone had gone to the local Sears and charged it up to the $3000 credit limit. I had no idea what had happened until the monthly statement arrived and said that I had spent $2999.69 during the last cycle.
6 months later they were still hassling me, had me sign my signature literally 100 times and finally I just told them that I was going to countersue them, because their staff had allowed someone to make fraudulent purchases.
Basically their clerks told them what my credit limit was, and judging from the signature it was a woman's handwriting so they allowed someone without ID and the opposite gender use my credit card, and engage in extremely suspicious activity: go on a spending spree that included the purchase of 4(!) VCRS, all from the same Sears location on the same day, in sequential purchases.
I basically told their fraud guy - yeah it was stupid of me to lose my credit card in a parking lot without realizing it, but how the fsck do you explain that your clerks never for a moment tried to verify that the person making these highly suspicious purchases was allowed to go on until they reached within 31 cents of my credit limit...
This happened 8 years ago, and still pisses me off. I haven't ever done business with Sears again, by the way.
::.. check out some Cell Phone Reviews
All done, the spam gets filtered into the caughtspam mail folder no more spam (1 spam per month gets through, 10-25 per day get filtered). For some "spam" that I'm asking for (yes I opted in on some commercial mailing lists such as travelocity), I just add them as a 'whitelist_from' in the ~/.spamassassin/user_prefs
--- Hindsight is 20/20, but walking backwards is not the answer.
It's not illegal to ask someone to sign a contract
In this circumstance, it could be construed as an attempt at intimidation, or even outright fraud. They were out of line to ask for it, and the plaintif should ask the judge to tell them so, hopefully at considerable expense and inconvenience.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
Can someone give me a concrete example of spam he has sent? If I've recieved it then look out Alan. ;-)
If a spammer would've shown up in small claims court or if they would've appealled, then it would've been a true test of whether the junk fax law can be used to stop spam.
As it is, it can still be a deterrent if 10000 unemployed dot commers file suit similtaneously, it'll be like spamming the spammers.