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Virginia Court Overturns Spammer Convictions
EvilStein writes "CNN reports that "A judge dismissed a felony spamming conviction that had been called one of the first of its kind, saying he found no "rational basis" for the verdict and wondering if jurors were confused by technical evidence." Legal groundwork being set? Will other convicted spammers now have grounds for an appeal?"
Please take a class or read a book on the American judicial system. This is a decision in a state court related to a specific case.
There's a very interesting video on the legal
aspects of this case available at
www.spamconference.org
You've Got Jail. Some First Hand Observations from the Jeremy Jaynes Spam Trial
Jon Praed, Founding Partner, Internet Law Group
In a nutshell, they convicted Jaynes' accomplice
based on the money trail and it wasn't all that
convincing. The evidence ruled inadmissable was
convincing, but not the evidence used to convict.
The person whose conviction was overturned was the 'accomplice', Jessica DeGroot. The judge upheld the conviction of her brother, Jeremy Jaynes, who is said to have led the operation. He will indeed be remaining a guest of the state for the next few years.
Lawyers are supposed to be good at spinning up some sort of story or analogy to let people understand complex things.
Let me help our future Leesburg juror's with an analogy of my own: spammers are the equivalent to military electronic warfare jammers. They try to stop our productivity with enmasse information directly beamed into our communications infrastructure.
Forgive me fellow slashdotters but in former soviet russia the russian military had a rule that any attack against its communications infrastructure was the equivalent of a nuclear attack and therefore they went to higher defcon-equivalent. In an information age, spammers are attacking our communications infrastructure and we should be cracking down on them as hard as possible as well.
Having RTFA, it looks like a spammer's accomplice was convicted based upon inadmissable evidence, which I must begrudgingly admit is an acceptable ruling.
I stand by my statement on email spammers, though.
STOP MISUSING APOSTROPHES, YOU MORONS!!!
Where does in the first amendment is it said "the right of people to force other to read what they say and by having them pay for me transmitting it shall be protected"???
Spam is not FREA SPEACH. Spam is THEFT. Theft of computer ressources, theft of bandwidth, theft of storage, THEFT OF PEOPLE'S TIME.
The poster of this article has it ALL WRONG. I live in virginia and have been following this case closely. The main spammer in question who did all the spamming, setup the spamming business, and was responsible for 100% of it WAS CONVICTED AND SENT TO JAIL. HOWEVER, during this he used his sisters credit card to purchase hardware/broadband for his spamming operation which the prosecutor thought was grounds to convict her as well. The Judge threw out HER CONVICTION ONLY due to the fact that he was convinced she had no part of it and didn't realize what the stuff her brother was buying was to be used to. THE HEAD SPAMMER DIDNT GET OFF, ONLY HIS (possibly) WRONGLY ACCUSED SISTER DID. Good lord, I wish the fuggin slashdot POSTERS would RTFA sometimes....
If you RTFA (yeah right), you know that the main spammer, Jeremy Jaynes, remains convicted.
It is his sister, Jessica DeGroot, who had her conviction overturned. Unfortunately, TFA is rather short on details.
Here is a better article: http://www.leesburg2day.com/current.cfm?catid=19&It goes on explain why DeGroot's conviction was overturned. The only piece of evidence that the prosecutor presented against her is a credit card statement showing purchases of those domain names used by the spammers. However her lawyers contend that it doesn't prove that she actually made the purchases; her brother or someone else could've used her card to purchase those domain names.
Yes, I live in Virginia and have been following the case closely. If you scroll down several posts below this one you'll see I also posted this. Anywho:
THE SISTER WAS WRONGLY ACCUSED. The brother was the spammer here. He used his sisters credit card to purchase stuff over the internet to fund his spam business. Due to it being in her name she got dragged into the case by an overzealous prosecutor. The judge CORRECTLY fixed this error on the jury's part. THE SPAMMER IN THIS CASE WENT TO JAIL(the bother) I wish the friggin posters would RTFA sometimes...
His sister (who only got a $7,500 fine) had her conviction overturned -- apparently on a technicality. The primary conviction with the recommended 9 years in jail stood. I find this mostly annoying but acceptable. Given that it was a technicality, it's quite possible that it will be reversed again.
Sometimes boldness is in fashion. Sometimes only the brave will be bold.
An appellate judge has lots of options. They can look at the evidence themselves and decide that a guilty verdict was unfair (as in this case,) or they can look at the evidence and decide that the lower court failed to take it all into account and demand the case be retried. They can also look at the procedures as well as the people. A sleeping defense lawyer, a drunk judge, a jury foreman who was found to belong to the KKK, any number of things can go wrong at the lower court. The appellate judge has the responsibility and the power to set things straight.
It brings up a good discussion on the power of judges. For example, it's common practice in civil proceedings for the lawyers to go "judge shopping", which is to get their case heard in a jurisdiction that has a judge with a track record of siding with their client. (Criminal procedings typically take place where the crime was committed, and unless there's a public uproar the cases are almost never moved.)
I will say that every time I've been in a courtroom the judges have been universally, absolutely professional. I have never failed to be impressed by a judge's common sense approach. Lawyers will try their slick speeches on juries, defendants will come up with bullshit stories, and the judges I've seen simply have had no tolerance for any shenanigans. "Get to the point, please" has got to be the most commonly spoken phrase in court (except for "I didn't do nuthin', your Honor!")
John
You're not a lawyer are you? Well, I'm not either.
Actually, I am a lawyer. I'm licensed to practice in Massachusetts. But I'm not your lawyer, we don't have an attorney-client relationship, and this isn't legal advice. For those things, see a lawyer licensed to practice in your jurisdiction who is willing to enter into such a relationship with you.
You not only have the right to refuse any mail, but you have the right to prevent any mail from being sent to you in the first place. The Supreme Court said so.
Note that I said 'strong right,' not 'absolute right.'
The case you're probably thinking of is Rowan v. US Post Office Dept., 397 US 728 (1970). And indeed, the Court did find in Rowan that it didn't violate the junk mailer's first amendment right for the individual recipients to, via the Post Office, prevent further junk mail from specific senders from being sent.
The key is, that it took action by specific recipients against specific senders. This is important, because next we see Bolger v. Young's Drug Products, 463 US 60 (1983), in which the Court upheld the first amendment rights of junk mailers. There, the government had stepped in and banned junk mail on its own initative, because recipients might have been offended. In that case, the Court decided that it was up to the recipients to decide for themselves whether or not they were offended, and that the government could not act to protect people who might be offended since such recipients could easily avoid reading the junk mail and just throw it out. The burden of not reading things and throwing things out was too low to justify government intervention.
So sure -- if you notify a spammer after the fact, or in advance, by some reasonable means, that they should not send further spam to you, then I think that it might very well be sufficient for the government to make sure that they don't. (Though I'm wary of this, since I'd rather err on the side of more speech than less)
But the onus is on you, the individual recipient. If you don't tell people you don't want something, don't fault them for sending it. And just because you don't want something, don't stand in the way of the people who do. (Though I'd have to wonder about who the hell actually wants spam)
I should be able to prevent anyone trying to send me this stuff from connecting to my port 25.
And you can. Turn off your port 25. That'll work.
Otherwise, I suggest telling spammers to not spam you anymore, and to follow up on that with appropriate legal action if they continue.
But force goes too far.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Spam is most certainly NOT Free Speech. Much like junk faxes, e-mail spam places most of the burden and cost of disposing of spam onto the receiver. Just because my front door faces the street doesn't mean anyone can come up to my door and try to sell me something or even try to just TELL me something. I can put up signs that say "No tresspassing" or "No solicitation" and because I OWN that property, you have to have permission to come onto my property or you are tresspassing. And I can assure you that if some fool started preaching loudly on the sidewalk adjacent to my lawn in the middle of the night, I would call the police an report it as disturbing the peace. They have the right to say or think it, but I have the right to choose not to be disturbed by it.
Free Speech laws are intended to protect a person's right to think and speak without fear of government oppression. There are also laws to protect a person's right to privacy and personal possession. It is MY e-mail account. I pay for it. If I give someone my e-mail address, that, and ONLY that gives that person permission to send me e-mail. If I revoke that permission, that person should no longer be able to send me e-mail. Just because my mail account is open to anyone doesn't mean I have to tolerate unsolicited marketing.
Spam isn't an act of Free Speech. It is an act of marketing or solicitation. There are plenty of laws that restrict the "rights" of marketers and solicitors. Spam should be no different.
The difference is that the junk mailers paid to have their crap sent. A huge amount of the Postal Service's money is generated by junk mail. If it disappeared tomorrow, the Postal Service would be in for some pretty dire straits.
The point is that sending a physical object has a direct economic impact on the sender, and much less so on that of the sendee. They paid for the paper, the printing, and the stamp... And don't be fooled, it cots tons of money to mass mail, even for a non-profit orginazation, which gets a substantial cut on postage. The recipiant has to only look at it, decide wether or not it's worth reading, then shit-can it.
I get tons of junk mail, and I'm annoyed about it, but at least the pattern recognition portion of my brain can almost instantaneously decide that some peice of mail is crap. Aside from a minute of time and desposal (I live in a city, so I can pretty much load the dumpster if need-be), it costs me nothing.
Then there's the trouble about trying to notify spammers and whatnot... Okay, so you click on the "do not receive further spam" link... Perhaps they're obligated to stop sending mail (or not), but that dosen't stop them from making a buck off of you. That little click gave them a host of valuable information that they can turn around and use directly, or sell. They learned that someone reads mail sent to that address, and by logical deduction, they learned that the person that read it is stupid enough to read (more) spam. They learn what kind of spam people respond to (or at least the ones stupid enough to read it), they learn when they read their mail, etc. I'd guess that an active e-mail address is worth lots and lots more than a dead one, or one that never responds. Perhaps you do tell a spammer not to spam you, but in the course of doing so, you've got more spam from two other spammers. Like that's going to go somewhere.
Furthermore, there's the issue of out-of-country and zombie network e-mails... Exactly how would you propose tracking them down? The best you've got is the person that contracted the spammer--and I'd say this type would be the kind to really go after... Because afterall, spam is done because it's worth money. Kill the money, kill the spam.
If they force you to shut off port 25 they've effectively caused you to do your own denial of service. That's about as good a solution as stopping a cancer by blowing one's head off.
I blogged something about this today here. Seems that prosecutors had plenty of dirt to prove Jessica's involvement, including an incriminating to-do list with her name all over it. Jon Praed presented a copy of these documents at the 2005 MIT Spam Conference, video of which is linked from my blog. Praed explained that, due to a legal technicality that's beyond me, the evidence was not admissible.
The important thing to understand is that courts make two types of findings: those of fact and those of law. The line can get blurry (for instance, courts might rule that 6-year-old kids are not negligent as a matter of law) but, in general, you have a fact-finder and you have a judge. In a bench trial, the judge acts as the fact-finder. In jury trials, the jury plays that role.
Appellate judges normally only rule on errors of law made by the lower courts. For example, if the trial judge totally botches the jury instructions or leaves out an element of the crime, appellate review will fix that. Appellate judges can only overturn findings of fact, including convictions as far as I know, when the findings were clearly erroneous. For instance, if absolutely no evidence whatsoever, direct or circumstantial, is entered into the record and the jury finds you guilty, that's a clearly erroneous finding and the judge would be correct to throw the verdict out. Note that, in criminal cases as has been mentioned in other comments in this thread, the judge cannot unilaterally reverse an acquittal. Nor can the government (prosecution) normally appeal from an acquittal. Double-jeopardy and all that.
Interesting note: you can be prosecuted for the same crime more than once if it's in different courts. The Supreme Court ruled last year, in a case my dad's friend's son argued, that an Indian (feathers, not dots) tribal court prosecuting an Indian from another tribe under authority to do so granted it by the US Congress is not acting as part of the US federal court system and therefore the same defendant can be prosecuted for the same crime in a US District Court. (The crime in that case was assaulting a police officer, for anyone who's that interested.)
Hmm... let me look at the front page.
Linux: Debian to be Marketed to Japan and China Linux (nerd)
Star Wars Sith Trailer and the O.C. Star Wars (nerd)
IT: Virginia Court Overturns Spammer Convictions Law regarding spam? important to IT workers. (vaguely nerd)
Google Calendar Coming Soon? Google (nerd)
IT: New Vulnerabilities Discovered in Firefox 1.0 Security + Firefox = (definately nerd)
Sony Ericsson Announces First Walkman Phone Tech goodies (nerd)
Science: Double-Slit Experiment in Time, Not Space Physics (very nerdy)
Your Rights Online: Appeals Court Sends Eolas Case Back For New Trial Again, yes it's law, but important to people in the software industry. verdict: (nerd)
Linux: LiveCD Lets You Try Out Project Looking Glass ( très nerdy )
Games: More Powerhouse Designers on Next-Gen Xbox video games culture? That would be filed under (nerd).
So, where is this lack of News for Nerds? Only two legal stories on the front page at the time of my posting, one relating to web browser IP infringements, and the other one being SPAM.
I don't think we've been able to find a technical method to stop spam that doesn't suck, so we've now gotta go the legal route. In my experience nerds rely more on digital communications than most non-nerds, so anything that can affect the medium as much as spam becomes important (thus newsworthy) to nerds.
Or do you have this as your Slashdot front page perchance?
And if the amount of legal news still gets your riled up, you can edit your Homepage and take out the "your rights online" and "politics" sections, reducing the offending reports.
I mean, what self respecting nerd would be into politics and law and all that boring stuff???
I'll never make that mistake again, reading the experts' opinions. - Feynman
According to a friend of mine who was studying law, judges can indeed overrule a "not guilty" ruling -- it would be part of the same trial, not an additional trial and hence not additional jeopardy.
It's just that judges rarely (if ever) actually overrule a not guilty verdict.
The real "Libtards" are the Libertarians!
"Spam is not FREA SPEACH. Spam is THEFT. Theft of computer ressources, theft of bandwidth, theft of storage, THEFT OF PEOPLE'S TIME."
So is slashdot. No matter...
But here's my conundrum. I'd like every spammer to die a slow painful death. But, at the end of the day, I get mail like "Hi, I'm a clueless fuckwit and I'm on one of your mailing lists (or read your webpage, whatever) and I'd like you to spend an hour helping me". I can just delete it. I can say "no" or I can choose to help them (rolls eyes, oh boy, again)
If I get a piece of spam I delete it.
Now what's the difference? Both are unsolicited. Both use my computing resources, both cost me per-byte bandwidth charges.
The only difference as I see it is we all agree (hopefully) spam is "bad" and helping people is good, but that doesn't mesh well with the law.
Ban, say, commercial unsolicted speech and then some guy who might say "Hey, I saw you're looking for a racaltitrant pleby on your webpage, I have an old one in my garage, I don't use it and you can have it for the price of postage, cheers" might fave the same penalty as your average c|@lis haflwit spammer.
What we want is a "email that pisses me off is bad" law and that's a real slippery slope.
I'm not sure the law is going to be any use here at all. Some people like/use spam. Bah.
Now, if there was some way I could say "if you want to send me unsolicited commercial email about killifish or pre-1940's Lemania chronographs that's ok. The rest of you can die" I'd have a good case, I think, for going after the penis pill hawkers, and I'd get what *I want*. Whois seems a likely place to put this.
(I'm serious about the killifish and watch parts btw, I need 4 Lemania 15TL column wheels and SJO "Loe")
Need Mercedes parts ?
A judge may not overturn a conviction simply because he would have personally found the defendant not guilty. He has to find that if the jury was acting fairly, then the conviction could not be possible. i.e. That no jury acting fairly could possibly have reached that guilty verdict.
I believe this judge was merely speculating why the jury reached the wrong verdict. I dont think there actually needs to be any finding of a specific 'cause' for the juries incorrect verdict. The statement to "confusion" is merely obiter. The court likely concluded the jury was not doing its job, which is to be FAIR and UNBIASED in its deliberation.
(as usual the media completely fails to report enough information to make sense out of what actually took place in the courtroom.)
This usually means that was no evidence before the court capable of supporting the juries conclusion, and therefore the jury either misunderstood or was using external evidence to reach its verdict, or was being vindictive and punishing the accused merely because of the victims suffering, or its outrage at the crime, rather than the evidence of guilt.
If you were tried with murder, and the murder victim was clearly still alive (and especially if the prosecutor admits the victim is alive, and the defense called the victim to the stand to attest to that), then the jury *must* acquit. The evidence can not possibly support a finding of guilt. Even if the accused was covered in the "victims" blood, and the "murder weapon" was found, and motive and opportunity was proved. If the victim is alive, then clearly no murder could possibly have been commited (unless they conclude that someone ELSE was murdered). In this case the jury must have misunderstood the evidence. That is kind of a crazy example, but it is a situation where an appeals court would reverse the jury's verdict.
Put basically... mere disagreements do not overturn decisions. More is required.
No one has a right to their *own* opinion. They have a right to the TRUTH.
"Will other convicted spammers now have grounds for an appeal?"
Anyone who is convicted on the basis of evidence which can not possibly cause a reasonable and unbiased person to reach a guilty verdict has always had a grounds for an appeal. This is nothing new. Nor is it restricted to accused spammers.
The jury has a responsibility, not only the accused, but also to the 'people' to be fair and unbiased in its findings.
Among other things, this means its findings must be objectively plausible. The jury may not create fictions out of whole cloth.
If the prosecution (as the CNN article seems to imply) could not find a single person to come forward and claim they received unsolicited email, and if the accused testified and claimed they never sent unsolicited email, then the jury could not arbitrarily decide to conclude the opposite of the only evidence before the court.
If that was a necessary element of the offence, then guilt can not be proved.
If they said 'guilty' then either they made a mistake or they were not being fair and unbiased.
No one has a right to their *own* opinion. They have a right to the TRUTH.
Actually, only the case against the woman (DeGroot) was dismissed. Even then, she only had $7,500 in fines according to the article. She didn't even get any jail time from the jury that convicted her. Apparently, she was only a minor player in the operation.
Totally offtopic, I know. Being from the UK, I continue to find "no solicitors" amusing. Even more so coming from a lawyer.
For the sake of relevence, how do you propose to explicitly disallow spam? SMTP doesn't have a "no-spam" flag, and even if one were added, it would be difficult to enforce its use (all mail sending programs would need to be updated, quite apart from the fact that SMTP is just a protocol, and not legally enforcable). There's currently no email equivalent to "no soliciting", which makes it somewhat different to door-to-door sales.
are you upset that someone is NOT going to jail for commiting an utterly nonviolent offense?
:-)
Spam inspires violent offenses.
Someone set us up the bomb, so shine we are!
Here in the UK precedent works in the following way: (1) A decision of a superior court on a question of law binds all junior courts. It is only the parts of the decision which are a necessary part of the conclusion reached that are binding (we call those parts the "ratio decidendi"). A judge may opine away (and they frequently do) on matters which are not a necessary part of their decision but they will not bind (we call those opinions "obiter dicta"). (2) Some (but not all) courts are bound to follow their own earlier decisions (our Court of Appeal is, our High Court is not). (3) Decisions of lower courts or decisions reached in other jurisdictions are not binding precedent but may be "persuasive" which means the court will look at them and follow the decision if they agree with the reasoning. Judges take comfort from the fact that other judges have reached similar decisions. As I understand US contitutional law each state counts as its own jurisdiction. (4) The most important point is that precedents are concerned with law and not fact. If your facts are different the precedent may not apply. Where you persuade a judge that your facts differ sufficiently that the precedent should not bind him (or persuade him) you are said to "distinguish" the precedent. In this case it is impossible to tell whether the conviction was quashed because of a question of law or whether it all turned on the specific facts. Unless we know that, it is impossible to judge whether the decision is likely to have any utility as a precedent. Yours boringly Sean
The junk fax cases have already settled this issue -- deliberate (on the sender side) and involuntary (on the recipient side) cost-shifting from sender to recipient makes it theft of service, not free speech.
/. If the government wants us to respect the law, it should set a better example.
...except you don't have to worry about %1 of your postal mail being a mail bomb.
That is something you DO have to worry about with email these days. Spammers are increasing the likelihood tha the average windos using novice will get infested by some email trojan.
A Pirate and a Puritan look the same on a balance sheet.