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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.
we're Michiganders BTW
I want 2D games back.
And for those who haven't read the article, one of the key things as far as I am concerned is the fact that the plaintiff won an award of $539.00 (including court costs). Multiply that by a-very-large-number-of-spam victims and I think some damage will be done.
Never, ever lose a file again. Ever.
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 seem to remember seeing Ralksy's address somewhere (wink, nudge)... he's a resident of Michigan. Now we just need every citizen of the state to sue him for a couple hundred bucks each.
General Geekery
1) Hunt down spammers
...and now we have the missing step 2. Thanks Mark!
2) ???
3) Profit!
Shameless plug for my photos on Flickr
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?
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On Slashdot I'm a lawyer.
" For those who are stuck in states which either have worthless (or near-worthless) anti-spam legislation..."
Uh.. what? What states don't fall in that category?
Seriously, is there a state that's got the problem under control?
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
Read the article. His tenuous argument is that email is similar to a fax, because he uses a dialup fax modem to read his email
No, the argument was that his computer is a "telephone facsimile machine" since it can "... transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper" as required by the statute. Further, the statute prohibits "[using] any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine". The statute does not state that the advertisement must be sent over a telephone line, only that it must be sent to a "telephone facsimile machine".
Ie, the sender used a "computer" to send an "unsolicited advertisement" to his "telephone facsimile machine," which is prohibited section (b)(1)(C) of the statute.
On that note, how many of us use a fax modem any more
I doesnt matter, if your computer has one, then it is a "telephone facsimile machine" as defined by the statute.
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
The definition of a fax machine under the TCPA does cover a computer with faxmodem and printer. There are many lawyers who argue that it is not intended to be used that way and the courts will not support it. I have been unable to find any binding case (ruled on by an appeals court) in the country that has said a computer with faxmodem and printer does not qualify as a fax machine. The only case that comes close is one that argues over jurisdiction in state of federal court. The appeals court mentioned that it was spam in a footnote, but took no action. As this was an appeals of a summary judgment, the court had the ability to dismiss on the issue of spam TCPA not applying to spam, but did not do so.
More information is at http://www.phillipsnizer.com/int-art111.htm
Fight Spammers!
I think the judge screwed up here, and this will likely be reversed on appeal. Even if you accept that Mark's computer qualifies as a "telephone facsimile machine" under the terms of this act, it's pretty tough to make the argument that what Sears did was "to send an unsolicited advertisement to a telephone facsimile machine". They sent an email message to an SMTP server, which stored it in Mark's mailbox. Using his fax modem to dial his ISP and retrieve the message was Mark's choice. Printing it out was Mark's choice. I'm very surprised that the Sears lawyers didn't slam-dunk this one.
1. That Ralsky fellow, him what allegedly got millions by spamming, lives in Michigan. 2. So do many Slashdotters. Hmm....
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?
So. This guy successfully sued his local Sears branch for sending him a piece of Spam mail, for a total award of $539. The theory is that (being that Sears is a place you can sue), them sending it to his computer, means that the Sears store, wherever it is, is culpable for doing 'damage', 'irritation', or whatever, to his computer. Great, good for him.
How do we apply this logic to things like copyright infringement over county, state, national, international borders?
This is bullshit.
The same people who are cheering this ruling, convinced it will slow down or stop spam, because those damned spammers will be liable for the shit they send will be the very same people screeching in horror because the **AAs are 'breaking into your computer' by browsing what's already there to find illegally traded files.
Ladies and gentlemen, you can't have it both ways. Either computers exist on the internet, so they exist in all countries at once and are obligated to follow any law in any place someone decides to sue them with, or they're not. But I for one am sick and tired of reading what feels like opportunistic banner-waving: if it serves my interests, then that's what I want.
Look at the bigger picture. Please.
Lex talionis is not, and never has been, "an eye for an eye, a tooth for a tooth, a life for a life". Lex talionis is a view towards law that treats justice as interchangeable with retribution. If someone puts out your eye, then go over and slaughter the sonufabitch--that's lex talionis in a nutshell. What the lex talionis codes did was codify this pre-existing principle and give it color of law.
On the other hand, Hebrew law has not been viewed as proscriptive, but rather prohibitive. Instead of saying "retribution is justice", the Hebrew scriptures actually put limits on the government's ability to authorize retribution--you were forbidden from exacting vengeance past the wrong done to you. If someone put out my eye, I wasn't allowed to put their entire family to the sword.
"An eye for an eye, a tooth for a tooth, a life for a life" is, like much of the Old Testament, usually read with absolutely no clue about the context in which it was written. Look at the Code of Hammurabi, which is another legal code from roughly the same period in antiquity. The Code can be summed up as "if you transgress these laws in any way, you're going to get killed. Or if your transgression was really minor, just permanently maimed." That was a helluva system of laws, let me tell you. That's all it was: a system of laws. There was no concept of justice at that time, just pure, unadulterated law, and if you broke it, you died.
Then along come the Jews and their principle of "an eye for an eye, a tooth for a tooth, a life for a life"... and this system of laws was hailed as moral, merciful, and just. Why? Because it established limits on what the government could mete out for punishment.
So the next time you feel like condemning Hebrew law ("an eye for an eye") as a "morally bankrupt code", please consider the other options available at the time. And also consider that you're completely misunderstanding what the entire point of the Hebrew "an eye for an eye" instruction was and is.
It was, believe it or not, perhaps the first time in human history that someone put limits on the power of government and established that there were moral limits to governmental power. As such, it deserves our respect.
Gentlemen,
While this small victory is somewhat nice, it is quite too early to celebrate. It's a simple algorithm: take the number of emails produced by a spam-king, multiply by the number of possible suckers (gross profit), subtract the $500 per infraction of those willing to take the time and effort (net profit), and the result is well a very, very large pot minus a few pennies.
I would suggest taking a drug that fixes the infection rather than the symptoms. But I could be wrong.
Peace out
"This isn't a study in computer science, its a study in human behavior"
I was hoping to see a title like "Michiganian Beats Spammer With A Baseball Bat". THAT would have been more to my taste.
Follow your Euro bills at EBT
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
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 something I've been wondering lately anyway: even if it might be next to impossible to track down the sender of a spam email, could you not still hold the company whose products are being advertised responsible for the spam?
IANAL, but I don't find it a fair stretch to say that, possibly even in a legal sense, the spammer was respresenting the company. The same can extrapolated to cover owners of websites, etc. -- any person, company or service that is the subject of the spam.
I was doubtful of this until now -- it seems like Mark pulled it off!
So then, why we don't stop trying to stop spammers, and go after the source? By attacking those that fund the spammers the spammers will still go down, and the targets are easier to find.
Punctanym: alternate spelling of words using punctuation or numerals in place of some or all of its letters; see 'leet'
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
Asking you to sign a contract when they lost in court, is pretty goddamned sleazy. I'd suggest you send a copy of that to the court, and ask the court to bitch-slap Sears and their law firm for that.
You don't have to enter into any kind of agreement with someone who owes you money pursuant to a judgement in order to collect what they owe you.
BTW, Sears has a long history of sleazy shyster tricks. Look up what they did to the inventor of the socket wrench sometime. When I want tools, I go to snap-on.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
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.