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

Why, yes Your Honor...

[Frodo Crockett]

They all willingly subscribed to my penis enlargement newsletter!

Confused?

[Anonymous Coward]

How can you be confused by technical evidence? That made no sense.

How much ya wanna bet the judge is subscribing to the spammers' services and is being blackmailed...?

</joke>

Re:Confused?

[berzerke]

...the judge let the spamming couple off...

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.

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

[Pig Hogger]

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.

Are you stupid, a spammer or a sockpuppet???

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.

Re:Two ways to look at this ruling

[Profane MuthaFucka]

You're not a lawyer are you? Well, I'm not either. But I know that your facts about mail aren't right. 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.

If you find any piece of junk mail offensive, for example, woodworking catalogs, you can inform your local postmaster to prevent their delivery to your mailbox. What you find offensive is up to you, not anyone else, which is why I used the woodworking example rather than the Adam and Eve catalog in the example.

E-mail is no different. I don't want penis enlargment material, because frankly I only have two normal sized hands. I should be able to prevent anyone trying to send me this stuff from connecting to my port 25. By force if necessary. Preferably, even.

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

[cpt kangarooski]

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.

Re:Two ways to look at this ruling

[Sturm]

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.

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

[Anonymous Coward]

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.

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

[rs79]

"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")

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]

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

[cpt kangarooski]

I think you may have forgoten to include your email address in your profile, or in your posts defending spam as free speech. Please post it so you can experience the full benefit of this particular form of "free speech" - you might then understand how ludicrous your position really is.

I said that I think that the first amendment offers protection to spammers. I didn't say I wanted spam. I get enough already, and I don't like it. Indeed, I probably hate ads -- all ads -- more than most people here (I filter /. banner ads out for starters, and would gladly filter them from everywhere, even the real world, if I could).

But this is the sort of thing that separates the men from the boys in the free speech arena; willingness to defend speech that's repulsive to you. I'm Jewish, and I'd defend the right of Nazis to speak. I hate ads, and I defend the rights of advertisers. It's the same thing. I understand that not everyone can do this, but that isn't really a good thing.

Its not that others think you shouldn't be heard, but they think you are a turd.

Fair enough.

Re:Two ways to look at this ruling

[Shano]

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.

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

[shostiru]

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.

Then, were it the case that the US postal service forcibly collected postage on mail sent postage due, you would argue there is no legal basis for objection?

I run an ISP. A substantial portion of our money and time goes to maintaining mail servers due to the volume of spam we receive and filter. We have, at times, had our mail servers become completely unavailable to all our customers due to spam overload. Pardon me if I find your argument uncompelling.

While I'm quite sympathetic to the Constitutional guarantee of free speech, and I absolutely oppose restraint on it when the sender pays the costs, I do not see anywhere in this document a guarantee of an audience, nor any support for the notion that the audience should be forced to subsidize that speech. You may not force a publisher or newspaper to publish your written works. You may not come onto my property and post signs or graffiti my home. I fail to see why this is conceptually different.

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]

This leaves you with recipient expense, and from junk mail cases we know that at a minimum, some recipient expense just has to be borne, basically. So on the one hand, we might ask where the threshold is; how much recipient cost should recipients have to bear? Or we can still credibly consider whether there is a threshold at all.

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.

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.

Re:Two ways to look at this ruling

[jedidiah]

...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.

let em click

[Virtual Karma]

But your honor, they have the option of cliking 'unsubscribe'. That way I know for sure that its a valid email id and i promise never to send another email to that id and also not sell it to my associates who are selling viagra

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.

Commentary on trial at www.spamconference.org

[gvc]

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.

RTFA

[YrWrstNtmr]

I know this is /., where not bothering to read before commenting is a badge of honor, but please...

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.

Re:Slashdot: News for Lawyers.

[prowley]

What gives? Can we bring back the old content?

Don't worry, the old content comes back every few days.

Re:300 + spam per day

[Jeff DeMaagd]

Look, spam is bad, but is it that hard to see a fine of $7500 for each piece of email is an unreasonable penalty? Would you also think that a $100,000 fine be appropriate for a person that stole $1?

Great news indeed

[Lead Butthead]

Now we can impose the death penality instead of the meager fine and short jail time.

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...

[plover]

First, no court or judge can overturn a verdict of "not guilty". That's the "double indemnity clause". You can't be tried twice for the same crime -- once you're found innocent, that's it.

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!")

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...

[hawk]

> First, no court or judge can overturn a verdict
>of "not guilty". That's the "double indemnity clause".

Err, you mean "double jeapordy." "Double indemnity" refers to double payment on some insurance policies for violent death . . .

>l 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.

I've seen them cross the professionalism line--but with one exception, it was in the name of common sense, and I agreed with them.

hawk, esq.

Re:Why can judges...

[ari_j]

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.)

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.

Re:Why can judges...

[whoever57]

First, no court or judge can overturn a verdict of "not guilty". That's the "double indemnity clause". You can't be tried twice for the same crime -- once you're found innocent, that's it.

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.

Just wait

[earthbound kid]

The case will be overturned when it's revealed that Judge Thomas Horne received promises of several million dollars from an anonymous Nigerian benefactor in exchange for his help clearing a bank account. It's easy for us to look down on this sort of thing, but we need to realize that he needed the money because his wife left him because of he was being emailed by hot college coeds all the time. He tried to make it up to her by increasing the size of his sma1l p3n.i.s with he.rßal v1aggraa, but she left him before he got the drugs. Since then, he's had to remortgaged his home to afford prescription drugs like v4llium and viccodañ, but he really couldn't make ends meet.

Jurors didn't get it?

[CHESTER COPPERPOT]

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.

My mistake

[Dimensio]

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.

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.

Re:No, no new appeals

[gd2shoe]

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).

Perhaps

[montypics]

Perhaps the judge doesn't administrate an email server. If he did, he'd surely be advocating the death penalty instead.

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.

Oh Gawd

[Tuzy2k]

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....

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:No, no new appeals

[Dfasdf]

yep.. case law can be pretty far reaching..

for instance, in Canada we can use our own case law, and that of the UK as equal. US case law can also be use up here.. but not as a precedent..

at least this is what I got from my law course in high school..

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.

TFA is not detailed enough

[imaginaryelf]

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&n ewsid=10300

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.

Only the minor conviction got overturned.

[darkonc]

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.

Re:No, no new appeals

[gd2shoe]

I'm sorry if you know more than I do, but the article (which I did read) wasn't that specific. It just said that one of the two convictions were overturned. It sounds like the judge thought he knew the "technical evidence" better than the jurors.

And it IS a precedent setting case. It is unlikely that any big precedents were set, just tiny ones. I couldn't tell you which ones unless I actually had some better information on the case (things like: which technical information is/isn't permissible in this type of case, for example). The dismissal may or may not have been a part of a new precedent (it probably wasn't, but I don't know that).

Nothing new here

[purduephotog]

The average juror's biggest selling point is their lack of intelligence and their ability to be led.

The average judge, while more intelligent, enjoys setting precedents.

Put the two together and you've got the 9th circuit out in California ;_)

(Yes I just received my jury summons... I don't think I'll make it tho...)

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).

ahh Virginia...

[coshx]

ahh Virginia...

Where drunk driving nets you a slap on the wrist (7 day license suspension, misdemeanor -- Virginia Driver's Manual [pg. 30]) and spamming sends you to jail.

I'm glad to see we have our priorities straight, and the dangerous people are being kept away from the rest of us.

Quick question

[BobSutan]

Allow me to ask this simple question: why is someone sending unsolicited email to you a crime, but selling your personal information to someone who sends unsolicited email not? Or to be more precise (in regards to ChoicePoint), someone allowing your personal information to be handled by crooks.

If you ask me, our personal privacy initiatives are more than a bit skewed, and with the estimated 600 man hours it takes a victim of identity theft to recover from said crime, someone needs to be held accountable. Then again, if our privacy laws made sense it'd be illegal to sell a citizen's personal information without their consent. The beneficial side-effect would be the removal of everyone's email addresses from the hands of spammers. After all, where do you think they get their information from? That's right, data warehouses (just like ChoicePoint).

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.

Re:No, no new appeals

[AndroidCat]

The fact that a guy got 7 years for sending 10,000 emails seems a bit absurd to me.

Yeah, that's only six hours per spam.

Of course I read the article

[EvilStein]

"Even the story submitters don't RTFA!"

I'm just drunk as hell, proving my point that even alcoholics can get stuff submitted to Slashdot. :-)

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.

Re:The "car" example

[Columcille]

The problem here is that your new car is expected to receive wear and tear through normal operations. If someone throws stuff at your car, you make that someone pay for the damage. Spam is thrown at the email address and is not normal usage. Also generally speaking the work on the roads and cars is to make them safer and last longer. Spammers on the other hand continue to do their best to make sure they have more and more ways into your mailbox.

If someone aggressively aged your car in the way spammers aggressively send out spam, you would have them in court in no time.

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.

the whole spam thing

[hyperstation]

okay lets sit back for a second...

this has gotten *way* out of control. a lot of us are the same people who rail on the courts and police for locking up nonviolent drug offenders so that there will be room for the fuckers who really need to be in jail (baby rapers, murderers, kidnappers, the very at-large terrorist element).

so why, oh why, are you upset that someone is NOT going to jail for commiting an utterly nonviolent offense? because you get some penis enlargement and get rich quick email? christ, use a filter. the place to hit these people is in the wallet, not the cornhole (as in pound-me-in-the-ass federal prison). if they're spamming, they're making untold millions of dollars - millions of dollars that can be snarfed up by the federal government.

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. i get next to ZERO spam, and i really have never seen what the whole fuss is about. i'm careful about where my email address ends up, and as a last resort i have a good spam filter. gmail does a really good job also. i have 50 invites, so whoever has managed to not get one (i really don't know how anyone couldn't have a gmail account by now), shoot me a message and i'll get one to you pronto.

really people, we have much much worse problems in the world than unsolicited email. the zealots over at spamhaus and spamcop and wherever else really make me chuckle, cuz the joke's on them. i'm glad this guy got off, and i hope they let every spammer that's in jail (i know there's a few) out so we can make room for more deserving scum.

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. 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.

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

just my 2c

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.

Re:the whole spam thing

[Ziviyr]

are you upset that someone is NOT going to jail for commiting an utterly nonviolent offense?

Spam inspires violent offenses. :-)

They had the dirt on Jessica

[BMcWilliams]

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.

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.

Re:No, no new appeals

[techno-vampire]

I have heard rumors that laws are sometimes affected internationally by presidents set in other countries.

Yes, courts can take cases in other countries into account, and sometimes do. Usually, from what I understand, in cases where there are no local precedents, and only as advisories. They're not bound by them, of course, but can base their rulings on them if appropriate.

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:No, no new appeals

[1u3hr]

The fact that a guy got 7 years for sending 10,000 emails seems a bit absurd to me.

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...

Re:No, no new appeals

[EvanED]

Courts will often use rulings by other jurisdictions to help with their decision. For instance, the US Supreme Court just cited a large amount of international opposition in their ruling about executing minors. (Not quite case law, but same deal.) Or a 4th Circuit Judge might base part of a ruling off of what the 7th Circuit ruled in a previous case.

However, the legal doctrine of stare decisis--"let the ruling stand"--doesn't apply in such cases. Stare decisis is the idea that prescedents from higher courts are binding. Thus if the Supreme Court rules one way, the 9th Circuit Court "must" follow what the Supreme Court says or have an extremely good chance of being overturned. (It also says the same court should be reluctant to overturn itself.)

By contrast, if two Circuit Courts rule differently and one of the cases reaches the Supreme Court, neither ruling has special standing over the other, even if one is a lot older.

To sum up, binding precedents encompasses a much smaller bredth of material than what you might consider case law.

This is probably explained pretty poorly...

Re:Slashdot: News for Lawyers.

[shawb]

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???

The judge didn't simply disagree.

[DM9290]

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.

you always have grounds for an appeal if

[DM9290]

"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.

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:Slashdot: News for Lawyers.

[TheRealSync]

What gives? Can we bring back the old content?

Yes, please, more dupes!

Re:No, no new appeals

[MysteriousPreacher]

Presidents set in countries, can affect the laws of other countries. Particularly if that president is 'the most powerful man in the world'.

Re:No, no new appeals

[Mattcelt]

Well, they can try. Here's a good short explanation of U.S. precent law.

IIRC, precedent can only be used as a basis for defense if a defendant's legal team can convince the judge that the precedent applies, although the judge can use precedent to justify a ruling if s/he so chooses without the input of the lawyers.

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.

Precedent

[SeanJones]

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

Re:Slashdot: News for Lawyers.

[Steve Mitchell]

It seems like a logical progression. I remember when Slashdot was "Chip'n Dip", and people mostly talked about computers and gadgets. Then as we approached the Great Internet Bubble, business related topics seemed to take over. Now that we've moved into post-Bubble recovery, focus has shifted to legal wranglings created by the after effects of the bubble or people desperately trying to make a quick buck like others once did.

What's next? Articles about surviving the post-dollar crash depression? "Cob/Mud built houses aren't that bad after all.", "Welcoming our Chinese Overlords.", "Programming for Food? HTML for Handouts."

-Steve