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?"

Comments

Slashdot: News for Lawyers.

[james3v]

Since when did Slashdot become News for Lawyers? I'm really dissatisfied at the selection of stories that the editors here are running. A long time ago I could rely on /. to give me the scoop on all the latest technology. Now I get a front page with nothing but law, lawsuits, patents, lawyers, etc etc.

What gives? Can we bring back the old content?

Re:Slashdot: News for Lawyers.

[rben]

Like it or not, what is happening in the courts affects the technology world more and more all the time. I think that it's important to have the broader picture.

Re:Slashdot: News for Lawyers.

[internic]

Perhaps it's a sign of the times. Maybe it's not that slashdot has moved from tech into law, but that law has moved increasingly into tech, something I think the majority of /. users would prefer were not the case.

Two ways to look at this ruling

[Dancin_Santa]

The first is that it is a terrible injustice that these spammers won't spend 9 years in jail and have to pay $7,500 for each spam that was received. The second is that this judge is stepping way over the bounds of interpreting and applying the law and is (as it is commonly referred to) "legistlating from the bench" by declaring the punishment to not fit the crime.

The third way to look at this is that Free Speech has won the day. To this way of thinking, another attempt to squash the little guy with a big mouth has failed.

I believe it was Voltaire who said, "I do not agree with what you have to say, but I'll defend to the death your right to say it."

Of course he was also known to say, "A witty saying proves nothing."

Re:Two ways to look at this ruling

[Dimensio]

The third way to look at this is that Free Speech has won the day.

Email spamming != Free Speech. Free Speech does not entail the right for you to use my private property to dump your unwanted advertising.

All email spammers should be put to sleep, as should this idiot judge.

Re:Two ways to look at this ruling

[cpt kangarooski]

Spam does fall within free speech.

You're right in that spammers have no right to ensure that you ultimately receive spam. However, they do have a strong right to send it to you. What you do with it is your own affair, however.

There is no legally significant difference between someone sending you a million emails and someone sending you a million pieces of junk mail. In both cases, your ability to receive communiques by the medium is considered implicit permission for the world to send you things. In both cases, you can refuse to accept them, or can throw them away unseen, and with virtually no effort on your part.

While I hate advertising everywhere, it strikes me that people who are opposed to spam to the degree you exhibit not only lack an awareness of how crucial free speech is, even where it disgusts you, but are also amazingly lazy and would prefer that free speech not exist just so that they don't have to press a delete button. That's pretty sad.

Me, I place spam in the same category as the KKK -- it's amazingly distasteful, and I think we'd all be better off without it, but that no one person's decision should be imposed on other people. If someone out there wants spam, then I would be doing them a disservice if I kept them from getting it. If someone out there wants to send messages to people, then were I to ban their message based on its content or it being widely disseminated, then why couldn't that be used against me by someone else?

Free speech means having to tolerate the existence of speech you don't like. No one is making you listen to it, however.

Re:Two ways to look at this ruling

[Steve B]

Spam does fall within free speech.

Theft of services is not "free speech".

There is no legally significant difference between someone sending you a million emails and someone sending you a million pieces of junk mail.

The difference (the senders of junk snailmail pay for the service they use; the senders of spam impose this cost on their targets) is a matter of common knowledge. This statement can thus only be interperpreted as willful trolling (and will presumably be moderated accordingly).

you can refuse to accept them, or can throw them away unseen, and with virtually no effort on your part

It is also a matter of common knowledge that spammers routinely sabotage attempts to reject their communications. If the law treated the matter rationally (i.e. if it regarded attempted evasion of spam filtering as a form of unauthorized computer access, and applied the established penalties for that crime), the problem could be readily brought under control.

I place spam in the same category as the KKK

Yes -- KKK members are known to engage in vandalism and trespass, and are generally punished when they get caught at it.

If someone out there wants spam

Solicited mailings are, by definition, not spam.

If someone out there wants to send messages to people, then were I to ban their message based on its content or it being widely disseminated

An irrelevant hypothetical, since the issue here is banning a particular method of message delivery, for the same reasons similar meatspace methods (spray painting on the recipient's house, heaving a note wrapped around a brick through the recipient's window, parking a sound truck in the recipient's driveway and firing it up at 3 AM) are prohibited.

Free speech means having to tolerate the existence of speech you don't like.

It does not, however, mean tolerating theft and trespass.

No one is making you listen to it, however.

See above. The law need only treat e-mail filtering as it treats other form of comptuter security, and the problem is solved.

Re:Two ways to look at this ruling

[Phexro]

The issue is about the clearly fraudulent and illegal means which spammers use to communicate. Compromised systems, spyware, and misconfigured relays or proxies are the tools of the spammer trade.

Abusing free speech is nothing new, and is not legal. The classical example is shouting "Fire!" in a crowded theater. Trumpeting "Free Speech" in support of spamming is a lame argument. Speech, particularly advertising, is regulated in many ways. For example, televised alcohol ads are banned, companies doing telemarketing must maintain a do-not-call list, certain types of ads are prohibited near schools, and so forth.

If spammers would just stick to a set of reasonable rules - like sending mail from a valid address, actually removing your address when you request it, using a standard header to indicate that the mail is a mass-mailing - I'd have no problem with it, because I could easily filter it out. This is what the spammers in the FA got nailed for - "...using false Internet addresses to send mass e-mail ads." I have no problem with this.

I'd also point out that with snailmail-based advertising, I usually get 3-4 flyers a week, representing around 20% of all my mail. This is a reasonable volume to deal with. With spam, however, I get several hundred messages a day, making up over 90% of all my email. This is completely unreasonable.

Re:Two ways to look at this ruling

[swordgeek]

Spam is not free speech. You keep saying it is, and you keep pointing that you're a lawyer, but at the end of the day, spam requires the use of MY resources, and I have to explicitly give permission to use those resources.

Maybe the air in your car tires should be up for grabs. I'll come and fill my air tank from your tires, because hey--someone might actually not mind me doing so, and preventing me from getting that air interferes with my freedom of action!

Let's look at this again:
"There is no legally significant difference between someone sending you a million emails and someone sending you a million pieces of junk mail."

Yes there is. Bulk junk mail is paid for by the sender. Bulk email is paid for by me.

"In both cases, you can refuse to accept them, or can throw them away unseen, and with virtually no effort on your part."

Try being a professional mail admin at a large company, and then come back and tell me that. In addition to the tens of thousands of dollars we spend on servers, software, and maintenance costs to stop spam, we probably put 10-20 man-hours per week into the problem.

Spam is theft, NOT free speech. Period.

Re:Two ways to look at this ruling

[Chasuk]

However, they do have a strong right to send it to you. What you do with it is your own affair, however.

They have no right to do anything with my time or property that I do not specifically grant them. Note that I do not care what the law says about this: fuck the law when it does not understand that my right to spend my time and resources any way that I choose -- and I choose not to spend it filtering spam -- automatically trumps the right of the spammer to make money by abusing me.

I do know how crucial free speech is, despite your patronizing assertion that my belief/behavior exhibits otherwise. Our government does NOT understand what it is, otherwise the FCC wouldn't exist, and Howard Stern would have said cunt fuck shit so many times on television and radio that we would all be yawning, and complainants about erotic embraces on Angel would be dismissed without wasting a single dollar of tax-payer money, and the anti-flag burning idiots would be flgged at the stocks just for being stupid and missing the point utterly.

You trivialze the damage that spam does as "prefer[ring] that free speech not exist just so that they don't have to press a delete button." I work at a small ISP that filters hundreds of thousands of spam a week at our customers request. We spend time and quite enormous resources doing this, and yet still often lose customers who are unhappy with our efforts and hope that it might be better elsewhere. This costs us time, money, and resources, and violates the rights of all the customers who are paying for a private service that they don't want polluted with spam.

If you don't get that, then you are another constitutional fanboy who doesn't understand the Constitution, despite any legal training you may have. Do you really think that Thomas Jefferson would have tolerated spam? After he'd spent numerous hours deleting advertisements for glow-in-dark-cock-rings, he would have drafted a bill specifically prohibiting it.

Re:Two ways to look at this ruling

[cpt kangarooski]

Theft of services is not "free speech".

Sure, but it also isn't inevitable with spam, so what's your point?

The difference (the senders of junk snailmail pay for the service they use; the senders of spam impose this cost on their targets) is a matter of common knowledge.

Firstly, receiving any communication incurs a cost on the recipient: junk mail has to be sorted through and thrown away. Telemarketing calls have to be hung up on. Door to door solicitors involve getting up, opening the door, telling them to go to hell, and slamming it again. There's always a cost in time, and sometimes in resources.

Likewise, there is always a cost to the sender: junk mail needs postage; telemarketing needs phones, phone service, and people to man them; spam requires computers and bandwidth.

These costs may vary, but the mere existence of costs is legally insignificant. Recall the Supreme Court's ruling in Bolger v. Youngs Drug Products, 463 U.S. 60 (1983), where they upheld the right of junk mailers to send junk mail, and said that while it imposed a cost on recipients, "the 'short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned.'"

I would argue that the same holds true with regards to spam. It's not difficult to filter, nor to delete. It can be automated, or done at the press of a button. It's easier than with junk mail.

It is also a matter of common knowledge that spammers routinely sabotage attempts to reject their communications.

How so? I've never yet seen a spam that resisted attempts to delete it.

Now, if the spam is that subset of spam which is deceptive or fraudulent, then of course it is not protected by the first amendment. But truthful and forthright spam that nevertheless can get through filters seems to fall within the shield of free speech. (c.f. junk mail sent in hand-addressed envelopes, which at first glance would not appear to be junk mail, but isn't really deceptive)

Solicited mailings are, by definition, not spam.

I'm talking about people who want unsolicted spam. It could only be solicited if they undertook affirmative action to get it. But if it shows up out of the blue, without invitation, it still might be welcomed. In a society that values free communication, this is the default.

The law need only treat e-mail filtering as it treats other form of comptuter security, and the problem is solved.

Actually, it would be disasterous.

This statement can thus only be interperpreted as willful trolling

I never troll. I'm stating my honest belief and my opinion of the law based on careful consideration and drawing upon my legal education, having been checked against others of even more significant stature.

Don't tell me that just because you disagree with me, you think that I shouldn't be heard?

Re:Two ways to look at this ruling

[cpt kangarooski]

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.

But this has no legal signifcance. Free speech is free speech regardless of cost, and remember, both speaker and listener ALWAYS incur costs associated with speech in ALL forms, if only in time.

Frankly, I think it's easier to have email automatically filtered, or to delete it with a single keypress, then it is to have to manually sort through junk mail, walk to the trash can, and throw it out. And if the latter, greater burden, is one that the Supreme Court thinks is okay, why not the lesser?

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.

While no legislation within a country will ever help against spam sent from abroad, please read the details of the Rowan case cited previously for your answer to this. It's not a big deal for those that the law can reach. And even outright bans won't stop those that it can't, so they would be inappropriate.

Re:Two ways to look at this ruling

[cpt kangarooski]

They have no right to do anything with my time or property that I do not specifically grant them.

That's not quite how it works; rather the general rule is that you implicitly grant them permission. You need to affirmatively retract it to get to the point you want to be at.

Note that I do not care what the law says about this: fuck the law

Heh. And yet, were it not for people vigorously defending free speech, you might have gotten in trouble for saying 'fuck.' (See the Cohen v. California case, commonly known as the 'fuck the draft' case) So I wouldn't dismiss the law quite so out of hand.

I do know how crucial free speech is, despite your patronizing assertion that my belief/behavior exhibits otherwise. Our government does NOT understand what it is, otherwise the FCC wouldn't exist, and Howard Stern would have said cunt fuck shit so many times on television and radio that we would all be yawning, and complainants about erotic embraces on Angel would be dismissed without wasting a single dollar of tax-payer money, and the anti-flag burning idiots would be flgged at the stocks just for being stupid and missing the point utterly.

You had me until the end; then you justified the patronizing assertion again.

Do you really think that Thomas Jefferson would have tolerated spam?

Given that he was a man of many faults, I don't think it matters much. A lot of the framers had big ideas that they couldn't live up to. The best thing we can do is to strive to do better.

Re:Two ways to look at this ruling

[cpt kangarooski]

Freedom of speech does not confer a right to use other people's property to send your message.

So you're saying that I cannot call you on your landline because you own your telephone? Or that I cannot write you a letter because you own the mail slot in your door? Don't be silly.

Being able to receive communications is implicit permission for people to send them to you. If you have an email account, it begs for email to be sent. Hell, you're listing it right along with your post!

You can -- to some degree -- remove yourself from that, but it takes affirmative action to do so, and reasonable notice provided to those that you're trying to deny. Such as the 'no spam' in your address there; I think that would work, since messages to the actual address, if collected by redacting it as provided there, indicate that the sender knew or should've known of your refusal.

Re:Two ways to look at this ruling

[Anonymous Coward]

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.

But this has no legal signifcance. Free speech is free speech regardless of cost, and remember, both speaker and listener ALWAYS incur costs associated with speech in ALL forms, if only in time.

If the cost incurred by the receiver has no legal significance, then why are there laws against fax spam and telemarketing to cell phones? I mean, it's just as easy to tear off the fax page and shitcan it, or to say "I don't want none" and hang up the cell phone - so why the laws against?

Answer: because you are wrong, and the cost that the sender incurs upon the receiver IS significant. Sorry. You may be able to point to a court decision which contradicts this view, but that means only that you're a lawyer and you can't tell right from wrong.

Oooh! Idea! Even easier than making millions of Americans wade through mountains of dishonest, misleading, unwanted, fat-pipe-clogging unsolicited commercial emails - why not make a national "SPAM-ME" list where those hypothetical people who want UCE can post their addresses and get all they want? Then the majority of us - you know, the real people who actually exist outside of your imagination - can peacefully go about our lives without having to put up with this shit.

Of course, that won't work. Because nobody would sign up - nobody really wants spam. Because spammers are shit-sucking assholes who refuse to respect the wishes of their "customers". Because spammers find it cheap and easy to make their living by stealing time and productivity off of other people's computers, by sending spam to people who've specifically asked not to be spammed, and by doing their best to trick people into reading their crap and click on their links. Because spammers have no morals and will continue to spam until the day that a law passes calling for the public stoning of spammers upon their second conviction. Because no matter how reprehensible a spammer's actions, some ambulance chaser will see a quick buck (or a reputation) to be made off of defending the spammer's "right" to waste my time and MY fucking bandwidth that I fucking pay for.

True story - I came within seconds of tossing my graduate education in the trash, because the acceptance was sent with the heading "Financial Offer". Looks a lot like spam, doesn't it? Imagine that one mixed in with 100 or so actual spams. Relying on the automatic filters or quick manual scan would have lost that one and I'd have missed the deadline. Spam does have real and significant costs.

This crap you're spouting about the cost to both sender and receiver suggests that as long as someone wants to call it "free" speech, then the receiver should have to bear that burden. Which is a lovely thought as far as that goes, but it falls apart in the real world. Try picking up a cross and delivering a sermon, uninvited, in your local temple on the Sabbath. Try handing out Circuit City ads in Best Buy. Try yelling "Movie!" in a crowded firehouse. Go scream, "Nigger!" in the middle of Ike's Liquor Lounge #17 (real place, btw). Then, each time, as you're getting thrown out or arrested or the shit kicked out of you, make sure everyone knows that they're violating your right to free speech. See how far that gets you.

At the risk of being accused of setting up a straw man, I'm going to anticipate that you'll be able to point out that those are special cases. Fine. Great. Perfect. Because SO IS SPAM.

Re:Two ways to look at this ruling

[Arker]

Theft of services is not "free speech".

Sure, but it also isn't inevitable with spam, so what's your point?

But it IS, in fact, inevitable with spam. Anyone with the slightest experience dealing with spam knows that. It's theoretically possible for a spammer to operate without stealing services, but it's not as a practical matter. In order to do that they would have to confine themselves to spamming on spam-friendly networks, which would mean spamming almost no one but each other. No spammer has ever been satisfied with that.

Recall the Supreme Court's ruling in Bolger v. Youngs Drug Products, 463 U.S. 60 (1983), where they upheld the right of junk mailers to send junk mail,

And as you damn well know the vast majority of the cost involved there is paid by the junk mailer. Materials, design, printing, postage... and they pay high postage, in effect subsidising the entire postal system. For this they get delivery.

Email spammers often pay nothing whatsoever to send, and never pay any significant fraction of the total transmission cost in any event. Very different situations.

The email system was designed for and implemented in nearly every installation for one on one or small-group conversations between people who are acquainted or have business together. Sending millions of emails to random addresses can never be anything but an assault on the email system - an act of trespass, theft, and vandalism, not of communication.

Free speech does not and has never given you the right to come spray paint your message on my house, and the invention of the net shouldn't change that.

Re:Two ways to look at this ruling

[TERdON]

There is one way (through legislation) that should take care of at least the spam (not your fans though, and I wouldn't want such a law either...). Just make unsolicited AUTOMATED email-sending illegal... (IANAL, but it hopefully should be possible to translate that sentence into legalese) The spammers aren't going to make such a problem sending spam manually...

Re:Two ways to look at this ruling

[cpt kangarooski]

If it incorporates filter-cracking, it is by definition neither truthful nor forthright.

No, that depends on precisely what's going on. But since you seem to allow for mail that doesn't try to get around filters but nevertheless does, it doesn't seem to be a significant issue right now.

Paper junk mail sent in a manner analogous to filter-evading spam (i.e. Joe Blow knows that a large number or recipients have instructed the post office to not deliver his mailings, so he changes his name to avoid the block) is most certainly not protected.

That's not very analgous. Filters are passive; a spammer has no way of knowing if a recipient has filters, and if so, what they are. All he can do is guess. That's entirely different from being expressly told to not send further mail.

Contradiction in terms, and hence meaningless.

No contradiction. I have been thinking of applying for a new credit card. I have never solicited credit card applications, but I get several per week, and I'd like really favorable ones to arrive, though I'm still not taking any action right now to further this desire.

A perfect example of wanting unsolicited messages.

Re:Two ways to look at this ruling

[cpt kangarooski]

That's very irrelevant, but true.

I don't recall that I said that spammers can order people to have email accounts.

What I'm saying is that where people choose to have email accounts, they implicitly welcome all communication, unless they explicitly provide reasonable notice that they don't want it.

A junk mailer can't send junk mail to a person without a mailing address, and can't force them to have an address. But once you've opted to have one, it's okay for them to send it to you, all else being equal.

Re:Two ways to look at this ruling

[Steve B]

What I'm saying is that where people choose to have email accounts, they implicitly welcome all communication, unless they explicitly provide reasonable notice that they don't want it.

The moment a spammer uses any filter-evasion technique, no matter how trivial, he confesses to already being on notice to that effect and refusing to obey it. QED.

Re:Two ways to look at this ruling

[Steve B]

If the cost incurred by the receiver has no legal significance, then why are there laws against fax spam and telemarketing to cell phones?
The few courts to look at it do seem to have latched onto the idea, but honestly, I've read the cases, and they seem to be weak. I think they're wrongly decided, and that such laws are unconstitutional.

By this argument, a prohibition against applying grafitti to somebody's house is "unconstitutional" (if the recipient doesn't like it, he can just paint over it -- hey, he has to paint his house from time to time anyway, so it doesn't really cost him anything but a minor adjustment to his schedule).

Re:Two ways to look at this ruling

[Steve B]

If there is no filter, then there's nothing to be on notice about. If there are filters, he doesn't know what they are. And if the mail is filtered or not, he can't know.

Nonsense. If any of these statements were true, he would either not use filter-evasion techniques at all, or would not be able to create a filter-evasion technique capable of being recognized as such (e.g. if spammers didn't know anything about Bayesian filtering, they would never have gotten the idea of appending blocks of gibberish text).

If I ever take it into my head to sneak into someone's private property and get caught wearing a black ninja suit and night vision goggles, I want you for my lawyer. I'll need someone who can tell the court with a straight face that I simply didn't know that I was trespassing.

Why can judges...

[imemyself]

Out of curiosity, how/why can judges overturn convictions? Isn't the whole point of having a jury so that one biased/stupid person doesn't have the ability to single-handedly find guilty/acquit someone?

Re:Why can judges...

[Anonymous Coward]

Because judges are rational, juries are not.

Re:Why can judges...

[hunterx11]

Letting someone arbitrary overturn convictions is not nearly the same as letting someone arbitrarily convict people. In cases where juries act egregiously (although that doesn't really seem to be the case here from what I've gleaned) and unfairly punish people, it seems sane to have a check on that power.

Re:Why can judges...

[willpall]

IANAL... I believe the principal here is that a judge can reduce the severity of a sentence or otherwise "make the guilty innocent" if you will. The reverse is not true. A judge cannot, for example, override a jury's "Not Guilty" verdict with a Guilty one. We have all seen cases where a jury seems to be 3 sheets to the wind when they render their verdict and in cases like that, I am glad that judges have the power to reduce sentences or overturn convictions. I would be scared if they had the power to do the opposite, though.

Re:Why can judges...

[Barto]

Because the attitude of the general public is that it is better for a guilty person to let off the hook than an innocent person to be put in jail. Shade of gray apply to the above of course.

Look at me! I RTFA!

[MillionthMonkey]

From the linked article that nobody seems to have read:

Ruling Tuesday, Judge Thomas D. Horne also said jurors may have gotten "lost" when navigating Virginia's new anti-spam law in the case of Jessica DeGroot. But Horne upheld the conviction of her brother, Jeremy Jaynes, who prosecutors said led the operation from his Raleigh, North Carolina, area home.

Seems to me we are not given enough information in this article to assess what the issue was in the specific conviction that was overturned. And I'm personally not familiar with the case. Does anyone know what the situation with the sister was? Did she merely live in the same house as a spammer?

Based on the article, she could have merely been in charge of canceling his magazine subscriptions. The article just indicates that the judge claimed the jury was confused in her case.

And I found an error in the story submission too:

Virginia Court Overturns Spammer Conviction s - Why is this last word plural?

Even the story submitters don't RTFA!

The linked story indicates no more than one overturned conviction, that of the sister. A third guy seems to have been involved but there is no mention of his being convicted, hence no overturned conviction.

Re:No, no new appeals

[ArmchairGenius]

Well no new appeals based on this decision, but that is not to say this case (and others like it) are not rife with plenty of potential appealable issues.

The fact that a guy got 7 years for sending 10,000 emails seems a bit absurd to me. Especially when (according to his lawyer) there wasn't a showing they were even unsolicited. Then of course there are jurisdictional issues...

Re:300 + spam per day

[Steve B]

Spammers have the ability to make millions of people a tiny bit miserable with their crime.

Nope -- spammers have the ability to completely destroy e-mail as a usable medium of communication with their crime if not deterred. Nine years is, if anything, too lenient.

Re:How can you prove a negative?

[gl4ss]

not that this really has anything to do with this case..

but 9 years for spamming is a bit rough(and frigging expensive on the system). who would you like to spend more time in jail.. the guy who blackmailed money from you(or busted your kneecaps and took some dough for future protection) or the guy who sent you some mail you didn't ask for(electronically too, so you didn't carry it from the mailbox).

if it was just a year or two would make the same effect.. what matters in cutting the spam is not the amount of jailtime that individual people who use spam to do SCAMS do, it's the amount of people who send spam that you catch(1 guy doing 10 years doesn't cut spam as much as 10 guys doing even 1 month).

Re:In Defense of Spam

[Baricom]

Should I be allowed to stand on the street corner and hand out copies of Common Sense that I bought?

Absolutely. No question about it.

However, if you stole the paper that your pamphlet is printed on, you may still have a first amendment right to your message, but you're delivering it with stolen property. The problem with spammers is not that they have a message, and not that they're beating you over the head with it. The problem is that they are using your money to give it.

You can be forgiven for not realizing this, because in an effort to keep you as a customer, your ISP is eating the costs of each spam they receive instead of passing it on to you. However, each spam they carry is costing them a lot of money in the form of bandwidth, legal costs (spammers often sue ISPs for the exact reasons you cite), hardware upgrades, and charges to subscribe to filtering services, if they choose to do so. You don't see the grand total, but you are paying your share of those bills.

What kind of grounds is that?

[shanen]

Or did he *REALLY* mean that they were biased against the spammer? You have to admit that it would be pretty hard to find any potential member of the jury who did *NOT* want to hang the spammer by the private parts from the highest tree. It's like they'd have to find 12 people who've never used email in this day and age? Or maybe that's what he meant be "confused by technical evidence"? These jurors were still trying to understand their quill pens?

In case it isn't obvious, I would be disqualified from any such jury. Heck, I'd be booted for trying to bribe the *OTHER* candidates to disqualify themselves so that I could get in.

By the way, laws are *NOT* going to solve the problem of spam. It's an economic problem, and it requires an economic solution. As soon as the spammers are forced to pay the actual costs, then the spam will be gone. Can't be done within the pseudo-economic non-model of SMTP, where they pretend email is free and the spammers respond by dividing by zero.

The basic idea here is this.

[mcc]

Should I be allowed to stand on the street corner and hand out copies of Common Sense that I bought?

Yes. Definitely.

However you should not be allowed to stand in my living room and hand out copies of Common Sense that you bought.

Yes, it is very much true that if I don't want the copies of Common Sense I am free to ignore you. But I still don't really want you standing in my living room.

Re:The basic idea here is this.

[mcc]

Your television is standing in your living room right now spewing out copies of things you don't want to hear.

No it isn't. My television is hooked up to receive nothing but static.

I can do that if I want. If I don't want to watch what the TV stations broadcast-- and I don't-- I don't have to. I can simply play my Gamecube in peace.

However if I don't want to deal with what spammers broadcast-- well, I kind of can't do that. The only way for me to avoid spam is to refrain from reading my email, either partially (by way of a "spam filter" that unfortunately must naturally sometimes accidentally target actual mail to me as well in the process) or completely.

For a more apt analogy, should we ban Jehovah's Witnesses and door-to-door salespeople from going around the neighborhood?

We should ban them from entering my living room without permission.

If I place a "no solicitation" sign on my front lawn, that should be sufficient to ban them from getting on my porch.

Re:300 + spam per day

[swordgeek]

There are two aspects to the crime here: #1 is the damage to the victim, and spam is definitely less damaging than being beaten or raped. The other is the scale of the victim, which is where it gets trickier. Rape is an act against a person. Spam is an act that damages our society. That's why such laws (and similarly, fraud) have what are otherwise draconian punishments.

Spam is NOT protected free speech!!!!!

[Dr_Marvin_Monroe]

AND THERE ISN"T TWO WAYS TO LOOK AT THIS. I agree with the 1st ammendment. I believe in free-speech too.

SPAM IS NOT FREE SPEECH.
WEBSITES ARE FREE SPEECH AND MASS MAILINGS THROUGH USPS ARE FREE SPEECH.
SPAM IS NOT FREE SPEECH AND NEITHER IS TELEMARKETING!

The difference is based upon the level of invasion towards the listener that the speaker is inflicting when contacting the listener. The difference is also upon who's paying for the medium, and where the destination is.

For instance, consider websites, the listener here is an active participant, and MUST somehow seek out the speach they wish to listen to. This form of speech is MOST protected, and rightly so. Consider also, the medium of cable TV, purchased movies and books. Even these types of speech are in jepardy by the proto-fascist Republicans (as seen on Drudge today) when gov. types want to impose restrictions on cable TV. Consider for a second, this is a product that costs money, and was deliberately sought out by the customer, not something that landed in their front yard without their control.

A second example might be a public speaker, like a guy on the street corner yelling about how God's gonna destroy all of us. This person does inconvience some with his speach, but the overall level is balanced by the fact that not ALL he says is protected (public decency standards and violent speech), and that listeners can go home if they wish.

The MOST UNPROTECTED SPEECH is unsolicited speech that intrudes on the legal "castle" or home. In this location, I am presumed to have specifically sought to NOT have others speak at me without an invitation! SIMPLY HAVING THE MEDIUM IS NOT AN IMPLICIT INVITATION TO SPEECH! This is mostly the same considering my e-mail, as I have sought nothing out, there is absolutely no protection for the spammer or telemarketer. What stupid reasoning could you possibly be using to consider that the spammer has the right to bombard me with solicitations when I'm seeking legal refuge in my only legal sanctuary! I've purchased a product (THE MEDIUM as you called it) for my own uses, not the speaker's. I've paid for this product, when the speaker/spammer pays for the product (i.e. free yahoo mail, television or whatever)they can call the shots. In this case (my phone and internet) I've paid, so I get to extend or not extend invitations to others to speak to me.

Remember that I'm not infringing on your right to have a website with penis enlargment info, beastiality pictures and whatever products you wish to hawk, I simply have the equiv. right NOT to hear you if I don't want! In my home, I'm legally presumed king of my domain, and I'm NOT obligated to sort out people that I don't want to hear from. I entertain as I wish, and I am under no obligation to listen to anyone. You (spammer/telemarketer) are under the obligation to demonstrate that you've been invited! You should notice that I've NOT grouped spammers/telemarketers with the people who mail the equiv. types of offers. In this case, THEY are paying the fees to ship the product, so they have the right to send. Further, my mailbox is technically the property of the US Postal Service. I also have the right to NOT pick mail out of this box that I don't want. Technically, no mail enters my home uninvited. With television, I've made the implied exchange of watching commercials in exchange for getting a free product. I've made no such exchange with e-mails, I've paid for a service, the useful service of which the spammer is robbing me of.

This country is so f*cked when people will even entertain the notion that telemarketers and/or spammers have a "free-speech right" to call/contact me at my home, at my expense, at whatever time they feel! They don't... They have the right to purchase commerials, buy billboards and hire blimps, but they DO NOT have the right to call me or force open my window shades to see their billboards or force me to turn on my TV to see their commercials.

DEATH.... that's the only answer in this case. I can certainly understand why a judge would be a little nervous about sending someone up for 7 years in this case, when death is clearly the proper punishment for such a crime. Viagra and Cortaslim until such time as you are dead.

Re:In Defense of Spam

[Baricom]

I am a firm believe that we should fix systems that are broken rather than trying to apply round-about patches.

Agreed. That's why I think the suggestion of another poster (that spamming be covered by existing computer crime laws) is sheer genious. IMHO, that's exactly what spamming is - theft of service - and it should be treated as such.

That said, the spammers are not stealing any bandwidth, they are using what they're ISP's allow them.

While some (maybe even most) spammers are sanctioned by their ISPs, many are not. Also, many spammers are now relaying their messages through hijacked computers whose owners are unaware of, let alone approving, that use of their computer.

They are also taking up a negligable amount of my bandwidth,

That's true for you and me. However, what about the people on dialup who are forced to download 300 spam messages with embedded JPEGs to get to the one e-mail from family they're waiting for?

A real solution would involve blocking the spam as early as possible (my ISP could reject it based on some magic header strings)

Your ISP is still downloading the message (and using the bandwidth) to read the magic header string. We've also already established that spam-friendly ISPs aren't going to cooperate on their end.

drastically reducing the bandwidth

Interesting. How? Compression? How do you intend to get the spammers and their ISP henchmen to cooperate?

coming up with email standards (there are many proposals, i just can't find a link right now) and denying any email from a non-standards-compliant ISP

No one is denying that a technical solution is great; however, many people believe the existing proposals are inadequate for one reason or other. There's even a "joke" template floating around that can be applied to most every solution proposed for spam thus far.

These industry-centric solutions can practically eliminate spam, and are far superior to government involvement.

Industry solutions work best when all parties are in agreement. Spamming, by definition, will never reach that consensus because you won't get the cooperation of the people you need most - the spammers.

I have to pay a trash fee. Shouldn't I be able to fine companies that send out junk mail?

I don't understand your reasoning, but under the assumption you should, how do you plan to do so without the government's help?

What we need is industry solutions with government-backed teeth. Working on the premise that spamming is equivilent to fax spamming - theft of resources - I think government involvment at some level is justified. I do see your point about keeping the government out of it - they do meddle in quite a bit as it is - but I think if we're careful, they could be useful to solve the spamming epidemic.

If you have a technical or industrial solution nobody's thought of, by all means, spread the word. You'll be my hero. Seriously.

Re:the whole spam thing

[McDutchie]

it has really struck me as entirely ludicrous that the most vocal people in the IT world have been calling for throwing these dickheads in jail, when most spam "victims" get themselves into this mess on their own.

Ah yes, the old "she must have asked for it because she wore sexy clothes"-type argument. That's really getting tired.

I have my e-mail address in order to be reachable by the public and I have had the same one since July 1996. I refuse to change it or hide it because doing so would make me unreachable by the people I want to be reachable for. If I do that, I might as well give up on e-mail entirely.

Remember? There was a time when e-mail was used to communicate with the world, not just with intimate friends and family. It was exciting, fun. Spammers have killed that for the most part, and turned the Internet from an open community into a hostile spam sewer.

Non-violent, you say? Not all violence is physical.

i get next to ZERO spam, and i really have never seen what the whole fuss is about.

Maybe you would see it if you'd get a thousand a day like I do. (Yes, I use a good filter, dozens still get through.) Or if you'd be an ISP and have to deal with your mailservers dying under the load of millions of spams a day and having to shell out money to buy dedicated servers to deal with the crap (like my ISP), impacting all their tens of thousands of customers. Still think that's as "non-violent" as using some drugs?

How about all the viruses spammers keep spreading so they have zombie networks to sell to bounce spam off of? This is where most spam comes from nowadays. How is this not the most criminal form of cracking, tresspass and theft of service?

[nonsense snipped -- RTFA]

i'll also add this, for you aol and yahoo users: i work for a company that occasionally (NOT hardly the primary business model) sends out what you would call spam, but really these retards signed up for the special offer emails on their own.

Spam is unsolicited bulk e-mail. If they signed up for it, it's not spam, by definition.

So which is it? Did they sign up for it, or are you spamming? Of course, since you're trying to confuse the issue by conflating free speech with cramming "speech" down people's throats while making them and others pay for the privilege of being the crammee, my guess is the latter.

your ISP's; aol, yahoo, earthlink actually BARGAIN with with some ISP relations person at my company about how much and when they will send the users email, and then they make sure it gets through. i'm sure this happens all the time.

So because it happens "all the time" (?), that makes it right, doesn't it? Some ISP's also keep signing up those hardcore spammers and exempting them from their AUPs with pink contracts. This is a huge part of the problem.

the only person really responsible for keeping your inbox clean and crap-free is yourself.

Spoken like a true spammer.

wrong

[Moraelin]

It's like saying "but one pickpocket doesn't do much harm on the whole, it's the group of them that's the problem, so let's not punish any one pickpocket." And that's, sad to say, so skewed it's not even funny.

No, not one spammer causes the problem, but noone proposed to stop at one. We'll punish as many of them as we can catch. One by one.

Sure, the first one won't make that much of a difference. Probably not the second one either. But by the time we got the top 100 of them, we've already solved 90% of the bulk mail by sheer virtue of having the perpetrators behind bars.

But we probably don't even need to get to that point. By the time 20-30 of them are safely behind bars, a lot of the other wannabes might start thinking twice. You know, "gee, money is good, but is it worth spending years in a cell with a horny guy called Bubba?"

Too Technical?

[conran]

Juries have to deal with whatever cases come up... If it's overturned because the jury wasn't seen as intelligent enough to decide the case, this'll have pretty terrible implications on pretty much any case with technical or scientific evidence. How is it that a jury can't be seen to understand penis enlargement emails being bad, but they can understand DNA evidence from hair folicles linking a person to a murder?

Gotta love equity of justice in the US

[EmagGeek]

A spammer can be sentenced to 9 years in prison, but a child molestor might.. MIGHT.. get 2 years. Rapists are often out in less than 10 - and let's not forget that double murderers often simply walk just because they are rich and can't wear small gloves.

I'm not standing up for the spammers here, but FFS, why does someone who sends nuisance email get more time than the drunk driver who last year killed one of my best friends from High School? (30m + 5y probation after plea bargaining down to an assault charge.. bullshit)...

Re:Gotta love equity of justice in the US

[Teancum]

Perhaps the worst injustice I heard about was in the Idaho State Penetentary, where an 18 year old kid (therefore, an adult under law) sent in a credit card application for "Micky Mouse" and a bunch of other totally silly stuff that you would normally think of as simply a parody, like $50,000,000/year salary and other rediculous stuff.

He got convicted for 20 years in jail for putting false and misleading information on a credit card application. Essentially he ruined his life over a simple prank.

At the same time, where I live somebody got 3 months in the county jail for automotive manslaughter (they killed somebody while driving their car... and disregarding other traffic laws in the process as well).

DUI convictions are even worse, and I can't believe that it is even possible for somebody to be convicted 4 or 5 times, and I've heard about 30 DUI convictions. At what point to the licenses get suspended? (Don't flame about what state laws say should happen...I'm talking about actual practice of judges and prosecutors here...especially when "prominent citizens" are involved.) I feel your pain regarding prisoner sentancing.