First Lawsuits Filed under Missouri's No-Spam Law

darksoulz writes "The St. Louis Business Journal is reporting that Jay Nixon, Missouri's attorney general, has filed the first lawsuits under the new no-spam law against two Florida spammers. The law doesn't totally prohibit spam, it just requires that the subject line be tagged to let consumers know that it is an advertisement. One of the lawsuit recipients even managed to spam an address maintained by the attorney general's office."

Comments

Struck down by the Appeals Court

[Dancin_Santa]

Sorry, interstate commerce is not controlled by the states. The law cannot and does not apply to spammers who work out of the jurisdiction of Missouri.

Re:Struck down by the Appeals Court

[codewritinfool]

This hasn't stopped Jay Nixon from suing many out-of-state telemarketers in violation of Missouri's "no-call" list - he's collected more than a million dollars so far.

Re:Struck down by the Appeals Court

[Courageous]

I believe that it's been ruled somewhere that double ended transactions (such as a solicitation, originating in one state, and ending in another) can be said to have occurred in the destination.

Anyway, jurisdictional disputes are complicated. Your "does not and cannot" assertion is pretty thin.

C//

Re:Struck down by the Appeals Court

[user no. 590291]

He's doing his sworn duty as Attorney General to enforce the laws of the State of Missouri. If the law is overturned, and he later prosecutes, what you say would become true.

Re:Struck down by the Appeals Court

[Animats]

Probably not.

The "commerce clause" says that Congress has the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes". But that's not an exclusive power. State regulation of commerce can clearly impact interstate commerce. State jurisdiction can thus overlap federal jurisdiction.

The way this works, after two centuries of dealing with grey areas, is that the states have power to act in an area where the states and the Federal Government share control unless and until Congress chooses to preempt state action in that area. Congress doesn't have to preempt, but it has that option.

Most, but not all, of the bills in Congress to regulate spam are written to preempt state law. If such a bill passes, the state laws become ineffective. But that hasn't happened so far.

Alternatively, Congress can choose to legislate in an area but not preempt state legislation. Most Federal criminal law is written that way. Bank robbery is a crime under both Federal and state law, and can be prosecuted in either court system.

There's an issue of how much activity a company has to have in a state before that state can regulate its activities. This comes up in litigation frequently. But when a company actively solicits business to residents of a state by directly communicating with them, that's usually considered enough to bring them under the state's jurisdiction.

Sending direct mail to residents of a state is generally considered to be "doing business" in that state. Spam would presumably be viewed similarly. The spammer might argue that they didn't know where the destination address was. That's been argued by a spammer in Pennsylvania. The judge didn't agree.

this won't stop much

[jr87]

This is only gonna stop the dumb spammers who are easy to trace... soon they are gonna be up to their eyeballs in spammers who are a bit harder to trace.... I think also this could cause the vengefull spammer to start to really hit some of these guys....One more thing how do spammers know what boxes are in Missouri some sort of list? if it is I'm sure the spammers just love it

It's about time...

[ScooterBill]

The spam trade is possible because of one thing:

Sending millions of emails is extremely inexpensive and like the old adage "ask a million girls for a date and no matter how ugly you are, you'll probably get a few takers"

If it becomes expensive to spam, then the spam will stop and email advertising will become what it's good for, telling potential customers about products that they ARE interested in.

I can't wait for the California law to take effect. It's way more restrictive. I pity the spammers.

M

Weak legislation

[lewko]

One of the main arguments against spam is that unlike 'conventional' paper-based junk-mail, the cost of spam is borne by the recipient, not the sender. This consists of the time taken to process the mail (be that reading and/or deleting it) as well as the cost in data transfer to download it.

Legislation mandating (as is the case here) that senders preface spam by adding "ADV: in the first four characters in the subject line or ADV: ADLT if it contains adult material" miss the point. The user has already paid for the download. If you multiply that small figure by the millions of spam emails sent it adds up considerably!

This is no better than allowing thieves to come into your home and steal your valuables as long as they wear a loud coloured shirt advising they are a burglar.

Re:Weak legislation

[lewko]

The bandwidth cost is negligible

For one or two emails, yes. Your answer is only referring to your personal experience with spam as a single email user. Now look at the bigger picture. You have never run an ISP though have you? Multipy the 'negligble cost' by tens of thousands of emails and it certainly DOES add up, no matter HOW little you are paying for bandwidth.

Consider that spammers may send your domain even millions of random emails e.g. aaa@yourdomain, aab@yourdomain etc. just to see which ones get through (i.e. don't bounce). Cost to them? Nothing. Cost to you? Plenty.

Even if you think this doesn't effect you, what happens when your ISP gets a major bandwidth bill? You end up paying for it.

The fact is, you should not have to pay for receiving someone's advertising yet you are, directly or not, and as such are being abused by the spammers whose activities require stronger legislation than this!

Re:Weak legislation

[Phroggy]

g IMAP), and then again the next step would be to make email-servers stop receiving messages with the forementioned subject feature to receivers who have enabled the feature.

The SMTP protocol does not allow this; once a mail server has agreed to accept a message, it MUST accept the ENTIRE message. The Subject header, like all other headers, is part of the same block of text as the message body. The receiving server can only reject the connection based on 1) the sender's IP address, 2) the HELO string, 3) the envelope from address, or 4) the envelope to address. Once it says OK to that, it must accept the rest of the message.

However, although requiring tagged subject lines will not decrease bandwidth usage, it will make filtering trivial, which will make it mostly pointless to send spam with tagged subject lines because nobody will even see it. This will discourage people from sending spam, which should decrease bandwidth usage.

It's too bad California is being so specific.

[caferace]

The volume of spam I get is somewhere in the neighborhood of 200+ a day. Granted, it's (nearly) all properly sorted and filtered with a combo of SA and Moz' filters. But... In order to report it to the Calif. AG, it has to adhere to the following guidelines:

"1. You are the recipient of the spam and you are a resident of California.

2. The spam was delivered via servers located in California (sender's, recipient's or intermediary server will suffice).

3. There is some indication that the spammer is operating in California, such as a California telephone number or address for orders. If you can identify the spammer and have information from other sources showing that the spammer is in California, that will also work.

4. The spam fails to comply with the statutory restrictions. To comply, the unsolicited advertising emails' subject line must begin with "ADV:", the first text in the message must offer a toll-free number or functioning email address for removal of the recipient from further unsolicited emails, and that statement must be in a type size as large as most of the other text.

1,2 and 4 are pretty easy. Proving 3 can be a real PITA, and means if I really want to work this hard I have to do a lot of legwork. Granted, the end result may be worth it, but...

ref: http://caag.state.ca.us/spam/index.htm

Re:It's too bad California is being so specific.

[ortholattice]

3 can be obtained by a simple whois. Reverse track the relay servers, the website, do a whois on domain names of sending servers and you have this condition met.

Ah, do I hear the wheels of progress already working on the next Mozilla extension? Imagine gleefully watching the California ones carefully plucked out of your Junk folder, optionally with PDF files of the necessary court papers ready to print and file.

What commerce?

[raehl]

Sending fraudulent email is hardly "interstate commerce". The principle you're referring to does things like prevent states from charging tarrifs or preventing goods from travelling through their state from one state to another. It doesn't mean states can't, say, require commercial driver's licenses for truck drivers, or prohibit you from stealing bandwidth.

At least *one* part of the job is easy.

[dbc]

One of the lawsuit recipients even managed to spam an address maintained by the attorney general's office.

This is surprising, why, exactly? Like spammers think: "Oh, this address is a government office, better delete it from my list."

The AG has gotta love this... J. Random Prosecutor thinks: "Now, let's see, so many spammers, which ones should I prioritize most highly for investigation today? Just let me make a quick check of my in box....."

Lots of talk about requirements here...

[khenson]

I had a conversation today about legislative requirements to mark spam as an advertisement. Invariably the subject arose concerning utilization of compromised computers making enforcement of any anti-spam law rather difficult.

I have a thought about that... We are permitted to own vehicles which participate on various public transportation infrastructure facilities such as state roads, the interstate system, etc. We are required to ensure the road-worthiness of the vehicle we own. We are required (more or less in differing states) to ensure our vehicle meets certain emission control requirements as well. Why then is it a leap to imagine that we must ensure (to the best of our ability) that our computers are kept up to date to prevent them from becoming criminal tools. I understand that we can't all be liable for the repercussion of the latest hack. I even understand that some people aren't as tech savvy as others just like I understand I am not a mechanic but it is my responsibility to ensure the tires on my car are securely fastened before using it to participate on a public roadway. If I don't know how to tighten lug nuts there are mechanics who can help me ensure my vehicle is safe. There are technical types who can help the "computer clueless" batten down the hatches a bit.

For example, I think if there is currently a computer out there that is STILL a nimda or code-red shit pump the owner of the computer should share some level of negligent liability, criminal or civil. If you are going to connect your computer to the internet then you need to take some responsibility for that action. For too long we just let anyone connect to the net any way they like. Let's tighten up the ship a bit...

Missouri Regulates Interstate Commerce?

[Tomorrowist]

While I am not a lawyer, this strikes me as an attempt by Missouri to regulate interstate commerce. This was one of the few things that the federal government was initially designed to do. Missouri is not supposed to regulate commerce between residents of Missouri and residents of Florida.

I could live with this law being struck down only to see it replaced with a similar federal law. Spam is a global problem that deserves a global, not local, solution; for now, the best we can get is a national solution. Having one federal law will keep it easy for honest emailers to stay legal while outlawing spam.

Re:Follow the money

[EddWo]

Not always. Sometimes it is just a way of creating lists of valid email addresses that they can sell on to other spammers.
I expect a lot of these penis enlargement things do not even exist. It is just used to check which mails bounce and which are actually read. Using an embeded image with a special URL.
They can make more money selling your email address to someone else than they can from selling you a product or service.