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Opt-In Junk Fax Law Survives Court Challenge
An anonymous reader writes "From Privacy.org: The U.S. Court of Appeals for the 8th Circuit has upheld (PDF) the Telephone Consumer Protection Act (TCPA) of 1991 against a First Amendment challenge. In the case, Missouri v. American Blast Fax, junk fax company Fax.com and Wal-Mart argued that the law violated the First Amendment because it imposes fines upon companies that send fax advertisements without the consent of the recipient. The case is the latest court victory for opt-in privacy laws." I hope the same logic is applied to spam.
I'd be interested in hearing resports from individuals who've succesfully sued after receiving unsolicited commercial faxes. If you won, were you able to collect?
If IBM patented Spam, the world would be a better place.
It's already been held to be constitutional to limit spam. That was settled in Ferguson vs. Friendfinder last year.
The people I'm working with have been receiving these faxes for YEARS, but no one ever thought to call the company to get them to stop.
Visit us at http://www.iblist.com!
First, a year ago (march 31), a federal court ruled that suing Fax.com under this law was unconstitutional.
Then, the FCC in August fined fax.com for doing what it was doing.
You'd think that was a lot of money? Next, later in August, Alert newsreporter Slashdot reported that Fax.com was being sued for 2.2 TRILLION dollars
Hillarity ensued!
So now, Fax.com owes 5.4 million + 2.2 Trillion (actually 2.2 billion) which is still 2.2 Billion USD.
However, since Fax.com is a business, all assets will just be seized of the business and the owners will lose nothing except the business.
Har har!
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Faxes Cost more then email, ink, paper, wear-n-tear and people can't recieve faxes while one is incoming. I hope this can be applied to spam, but the costs are much lower, and email can be downloaded much faster. Email servers can handle lots of incoming mail at the same time.
Still it sets a good precedent that could be very useful in the future.
I always wanted to use the 800 number on junk faxes, and setup a computer with a simple script that would sequentially "unsubscribe" every phone number in my exchange from their database.
Southeastern Virginia REPRESENT!
between unsolicited email and unsolicited facsimiles. unsolicited email (spam) may cost the recipient *indirectly* in rather intangible ways (i.e., used bandwidth) that are very difficult to calculate. unsolicited facsimiles, however, cost the recipient in very tangible ways: paper & toner. i do not allow a store to print advertisements from my printer so why should i have to allow a store/business to print advertisements from my fax machine?
Life is short; think quickly.
The first thing I (and many others - this is hardly original thought) think of is cost-shifting from advertisers to customers/consumers. Where a TV spot is clear-cut - the advertiser pays money to the station/network to buy a spot, and all the consumer "loses" out of the bargain is thirty seconds of "Who Wants to Marry This Guy For His Money," when it's a blasted fax, the person on the other end, who did nothing to deserve this, now has their fax machine tied up for several minutes; they have to pay for paper, toner, and disposal of the junk, which often enough has no relevance to their business.
With spam, more of the burden falls on the ISPs: bandwidth costs money, and a spam broadcast promising bigger penises directed at fifteen thousand randomname@domain.com chews hell out of bandwidth. I"ve seen this firsthand, and it isn't pretty. Then there's the issue of tech resources being diverted to deal with the problem: buying software to block spam, dealing with irritated customers who either got the spam or had an email falsely flagged, tracking down spammers, etc.
The first amendment is limited in the US - you can't yell out "fire" in a crowded theater, and you can't block the entrance to a business in protest of a policy. I'd posit that spam is very similar to the latter case, only the argument is even weaker in that a protester is at least making a moral point, while the spammer is only trying to make a fast buck.
What I'd really like to see is some way to prosecute people who use open mail relays to broadcast spam. Many of these people operate from within the US with impunity. I fail to see the difference between what they are doing and cracking, forgery, and DOS attacks.
political_news.c: warning: comparison is always true due to limited range of data type
There's no law against sending unsolicited postal mail, so far as I know. Why should there be against faxes and e-mails?
The only argument I can think of is that faxes and e-mails are transmitted at a loss to the carrier or recipient. E-mails take up bandwidth that the sender doesn't pay for. Faxes take up ink and paper, and also tie up the phone line and thus choke out signal in favor of noise.
The fax problem is pretty insurmountable, so this is probably a good law. But I wonder about the e-mail. How long before Yahoo or Microsoft decide, in light of the anti-spam laws, to open their pipelines to spam companies for a cost. i.e. you may spam to Yahoo addresses for $500 a mailing, or whatever. Especially since consumers can opt out?
In the end, that would be both a good and a bad thing, I suspect. On the bad side, it would pretty much permanantly entrench spam into the culture. But I suspect that's already happened. The good side would be that it would, assuming anyone ever figures out a way to enforce the laws, crack down on Nigerian money scandals, and at least promote spam offered by quasi-reputable companies.
Philip Sandifer's academic website
i think america is doing quite enough brute-forcing of civilization right now, thank you very much.
Spammers could argue that neither of these apply to spam. The first is an issue because 80% of faxes automatically print, consuming paper and and ink. The argument having to do email is much more nebulous, requiring the court to consider the time consumed in deleting faxes as a resource. While it might be a reasonable argument to make, it's tricky when considered against a first amendment argument.
The second point is even harder to make against spam. While a fax machine is completely consumed while receiving a fax, a computer can do other things while receiving spam. The strongest argument that could be made is that the bandwidth of a dialup modem is consumed by the spam, which is still a weaker argument than is presented for fax machines.
So while both of the points are certainly arguable, it's not as easy an argument as it is with faxes. I do believe that antispam legislation is constitutional, I'm not sure that this particular decision does much to further that cause.
"It is our blasphemy which has made us great, and will sustain us, and which the gods secretly admire in us." - Zelazny
Sure, an email doesn't usually cost a lot to receive. But tens or even hundreds of emails a day, multiplied for instance by many employees in a business can add up to serious increases in a lot of costs.
And not just bandwidth costs. How about billing costs? You're a $300/hr consultant who has to spend half an hour a day sorting through your email trying to figure out what's spam and what's not. That's not an "intangible" cost. That's $750 a week. Sure you could find better ways to block it or sort it more efficiently or whatever, but that's another thing imposed on you by those sending the emails.
When such a large percentage of email is sent every day, I don't believe you can say the monetary cost is insignificant.
This is different from saying, you can't send SPAM prior to permission being given.
Fight Spammers!
I hope the same logic is applied to spam.
The problem here is that even if a law is passed how do you track down the people responsible. Given that headers are usually forged and the open relays are likely to stay open then this is going to be diffilcult. You could change SMTP so that everyone is tracked from end to end, but this brings up privacy issues.
Since most spam makes reference to a phone number or website then the people selling the product should be held accountable. Its not a perfect solution either, but it is the best thing I can think of. What should the punishment be? Not sure, though how about a fine, equivalent to the costs of bandwidth usage, in the same manner the MPAA calculates the 'loss' of sales.
Jumpstart the tartan drive.
Nor does it say *I* have to pay to hear you ( i.e.: resources to receive the fax.. and Spam too ).
It only guarantees your right to say it.. nothing more..
Funny how the retailers demand it, but if its bad press against them, they use the DMCA to squelch speech.
---- Booth was a patriot ----
Galling as it is, spam is not in the same class as fax so I would not expect much from this case into the world of spam. Remember, the courts are, quite rightly, loathe to put restrictions on communications. Here they said a fax costs enough to allow the government to do it. Spam costs are orders of magnitude lower, especially for any single spam. Unlike spam, a single fax can tie up your machine and make you miss a wanted fax, while for spam, only the overwhelming volume, not any one message, can be in rare cases responsible for filling a mailbox to the point it can't get mail.
The courts have mused over this issue a bit. The first rulings on the junk fax law were done when fax paper cost quite a chunk per fax, and people wondered as the cost came down if the cost-transfer test would still apply. The courts seem pretty clear that they don't think really miniscule cost tranfers would qualify as a compelling government interest, it's a question of amount here, not kind.
Has it been over a year since you last donated to the Electronic Frontier Foundation
Slashdot, OR: Slashdot.org today reports that the state of Missouri has figured out a new way to raise revenue while defending its citizen's rights.
.con companies.
Missouri's plan revolves around suing the spammers who trash resources of businesses with fax machines by sending commercial faxes, which Fax.com is alleged of doing.
"This business plan of this state leads others above and beyond any other similar proposed measure to restore dot com revenue in the declining economy," a slashdot poster said.
"Not that Missouri is a technologically important state. Heck, I don't even live there", he admitted. "However, I think it is an important lesson for other states to sue spammers as soon as possible to get as much money back as possible."
The reason for urgency is simple -- there is only so much money that an ex.com can be ripped for before it presses the Ch. 7 button on the TV remote, pointing at itself.
It was discovered shortly after the story broke that Fax.com had it's OWN business plan, too. We received the following from an anonymous source:
Fax.com BUSINESS PLAN
=======================
1) Violate junk fax law
2) Hope the law is invalidated when Missouri sues you; stay cool when the case goes for appeal.
3) Keep spamming for 5 more months to show your company's confidence in winning the appeal, too.
4) Get fined $5.4 million USD by the FCC for those 5 months of confidence and ignoring their requests
5) Get sued by a a businessman (within the month of #4) for $2.2 Trillion USD.
6) Learn that you lost the appeal and will probably lose every case against you.
Fortunately, a glimpse into a brighter future of the economy and privacy is not all that this latest announcement provides.
7) ??
8) Profit (?)
--
Unconfirmed reports say that this level of discredibility and the news of losing the appeals decision has FOXNEWS, part FOX Broadcasting Company, worried.
The AP wire reports that FOX.com is considering suing Fax.com also, but for a different reason.
A representative speaking on the condition of anonymity told us over the phone,
"We have always assumed that Fax.com was not a credible organization. Now, the court decision is proof that Fax.com is so untrustworthy or discredited that we fear people will confuse Fax.com with FOXNEWS.com."
A quote from a press release, added shortly to FOX's web site after the story broke, clears up why there could be confusion.
"It's NOT exactly because our domain names are similar that we are so upset. We just feel that this discredibility will have people confusing Fax.com with FOX.COM or FOXNEWS.COM due to the high level of discredibility that we here at the FOX BROADCASTING COMPANY NEWS DEPARTMENT strive to provide. We are seriously considering our own legal action. But it is true that we cannot have a competitor with a similar domain name trying to out do us."
The news of the court challenge means Fax.com will probably have to go bankrupt to debt. According to a Uranus Marketing survey, Fax.com is one of the last remaining of 14 profitable dot
Even with the sentimental value, many readers of slashdot regarded this news as unimportant, expressing their sentiments wholeheartedly.
"We can just wait to read this until the second or third time it's posted on slashdot, thank you very much."
--
Missouri's win shows that states can do a lot to improve their economy and fight spam, too. However, that's not where the story ends.
In fact, the REAL story here is that this is slashdot's fourth article in a series of content covering Fax.com and its money woes.
Surprisingly, no dupes have been reported and each slashdot report was a new update on the case.
-
CmdrTaco could not be reached for comment.
Cover your eyes and click this link!
One was a $1000 judgment that was paid and the other 2 were settlements provided before I even filed.
My junk fax case was dismissed due to a ruling 'made in error I might add' by a local circuit judge, however arguments concerning its appeal was heard last month.
Anyone folks, do some research. It will take a weeks worth of solid, full day, research, but you can file your own suits and collect from these scum. There is a minimum $500 statutory damage for each violation that can be trebled if you can show the violator 'knowingly or willfully' violated the law. It doesn't matter that they did not know the law or not. If they knowingly sent the fax, and that fax was against the law, then they are subject to those treble damages, so then each violation is $1500. I have several cases just waiting to be filed this summer when I have a bit more free time.
Cave, wreck, and deep diver.
AC comments get piped to
The burden however small it is is placed on me. Even if it costed me only 1 cent, this is one cent I would have to pay for something I did not ask to begin with. Plus those "cent" would cumulate with the sheer mass of spam.
In all other case of advertising, the cost are shifted on the sender. With spam it isn't. And as such, this is the same burden as fax law. You cannot/should not make the receiver pay for the burden of your own advertising.
So how about all the ads go out as a personal message from the company president? That's quite plausible for a company of one. Would that be entitled to free speech protection. Or if it's commercial content as opposed to a commercial speaker that deprives speech of protection, how about a nonprofit selling "Re-elect Bush" as a way to express its message and finance its organization? Is that political or commercial? What if they do it for profit?
I'm not criticizing your viewpoint, rather the idea that a sharp line can be drawn between commercial and political and individual speech. More than a few people have recommended abandoning the framework. The labels attempt to make the problem look easier, but they just move it back a step to figuring out what falls in which category. For example, courts used to try to figure out whether the government could act arbitrarily towards you if something was a right or a privilege, but that attempt to presort every interest into two neat categories has generally lost favor (for example, is driving a right or a privilege? well, whatever it is, the government must give you due process in depriving you of it).
And, of course, you're right that the First Amendment applies essentially to government action, but there's no company here trying to limit speech, they're the target.
First of all I did not say you can stop anyone from speaking. That WOULD be a violation.
.
What I said, in more simple terms: you have a right to speak, and I have a right *not* to listen.
The discussion specially was concerning me paying to hear you speak. ( via the resources it takes to receive electronic 'speech', its not free ) Again that is wrong. You ( a generic term here ) do not have the authority to charge me to listen to you speak. Nor do you have the right to force me to listen.
Thus the concept that the 'right to be heard' does not exist. Nor should it.
As a side note, I have the constitution and bill of rights on my wall above my desk, nowhere in there does it say I have to listen to you. It only states that you have a right to speak. Nothing more, thus no right to be heard.
---- Booth was a patriot ----
I've called plenty of times for plenty of different senders. I have yet to get through to any of them.
Aside from the fact that no one should have to make a call to stop being stolen from, it just doesn't work.
Directive 2002/58/EC (excerpt)
Unlike Europe, the U.S. of course do not even need to leave room for implementation, so with less Legalese than below, a hefty fine for spammers and punitive damages payable to the spammed can be defined right in the federal anti-spam statute. If it's balanced like the European solution (still permitting legitimate eMail within a narrowly defined business relationship, but outlawing all of the abusive practices that operate at the recipients' expense), it will easily pass constitutional muster, and help America get rid of junk mail once and for all (probably even within just a few weeks).
(40) Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and e-mails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, Community-wide rules for businesses and users.
(41) Within the context of an existing customer relationship, it is reasonable to allow the use of electronic contact details for the offering of similar products or services, but only by the same company that has obtained the electronic contact details in accordance with Directive 95/46/EC [i.e. the General Data Protection Directive]. When electronic contact details are obtained, the customer should be informed about their further use for direct marketing in a clear and distinct manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal.
(42) Other forms of direct marketing that are more costly for the sender and impose no financial costs on subscribers and users, such as person-to-person voice telephony calls, may justify the maintenance of a system giving subscribers or users the possibility to indicate that they do not want to receive such calls. Nevertheless, in order not to decrease existing levels of privacy protection, Member States should be entitled to uphold national systems, only allowing such calls to subscribers and users who have given their prior consent.
(43) To facilitate effective enforcement of Community rules on unsolicited messages for direct marketing, it is necessary to prohibit the use of false identities or false return addresses or numbers while sending unsolicited messages for direct marketing purposes.
(47) Where the rights of the users and subscribers are not respected, national legislation should provide for judicial remedies. Penalties should be imposed on any person, whether governed by private or public law, who fails to comply with the national measures taken under this Directive.
Article 13
Unsolicited communications
1. The use of automated calling systems without human intervention (automatic calling
Junk faxes con not only waste resources with fax machines they can also waste your cellular air time and clog up your voice mail. I got several fax messages in my voice mail before. My phone only lets me know if I have messages. I don't know whether they are fax or voice until I call in to check. I had the message system send the messages to a fax machine and was able to get them stopped based on the info on the fax. Very infurating.
Also the First Amendment argument used by the business is weak. The First Amendment give you the right to say what you want. It does not grant you the right to force someone to listen to you nor does it obligate me to offer any support to you in exercising your free speech. These junk faxes force you to listen to their message. They can't be ignored as easily as the talking head on TV with whom you disagree. And they sure as hell require the recipient to assist the sender. My freedom to listen is also implicit in the first amendment. If I don't have the option to choose to listen to or ignore your speech your speech isn't free.