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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?"
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.
But it DOES matter to the rest of us. (Those who care about anti-spam laws everywhere)
It's called "case law". One judge somewhere makes a ruling and all judges following will treat the ruling as an appendage to the law in question. Judges, in this fashion, do write law!
It doesn't even need to be in the same state to be sited as case law. If it is a case from a different state, they will often take differences into account between the laws. I have heard rumors that laws are sometimes affected internationally by presidents set in other countries.
It may relate to a specific case, but it matters to every such case after. Especially when a new, untried type of law goes to court for the first few times (such as anti-spam).
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
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.
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.
Perhaps because it isn't true.
1) The "10,000" is just part of the definition of spamming in this law -- 10,000 per day. Accordng to the prosecutor, Jaynes was rated the eighth spammer in the world. For example, he sent spam to 80 million AOL.com addreses, repeatedly
2)It was 9, not 7 years
Neither the submitter, editor, and hardly any of the commenters seem to have actually RTFA...
"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.