Slashdot Mirror
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?"
They all willingly subscribed to my penis enlargement newsletter!
"The newly born animals are then whisked off for a quick run through a giant baking oven." --heard on Food Network
How much ya wanna bet the judge is subscribing to the spammers' services and is being blackmailed...?
</joke>
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."
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
fuvoo: watch something
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.
-All that is gold does not glitter - Tolkien
www.ra
There's a very interesting video on the legal
aspects of this case available at
www.spamconference.org
You've Got Jail. Some First Hand Observations from the Jeremy Jaynes Spam Trial
Jon Praed, Founding Partner, Internet Law Group
In a nutshell, they convicted Jaynes' accomplice
based on the money trail and it wasn't all that
convincing. The evidence ruled inadmissable was
convincing, but not the evidence used to convict.
The person whose conviction was overturned was the 'accomplice', Jessica DeGroot. The judge upheld the conviction of her brother, Jeremy Jaynes, who is said to have led the operation. He will indeed be remaining a guest of the state for the next few years.
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?
Every time you post an article on Slashdot, I kill a server. Think of the servers!
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.
"You call it a new way of thinking; I call it regression to ignorance!" -- Operation Ivy
But it DOES matter to the rest of us. (Those who care about anti-spam laws everywhere)
It's called "case law". One judge somewhere makes a ruling and all judges following will treat the ruling as an appendage to the law in question. Judges, in this fashion, do write law!
It doesn't even need to be in the same state to be sited as case law. If it is a case from a different state, they will often take differences into account between the laws. I have heard rumors that laws are sometimes affected internationally by presidents set in other countries.
It may relate to a specific case, but it matters to every such case after. Especially when a new, untried type of law goes to court for the first few times (such as anti-spam).
I won't join Slashcott. OTOH, If Beta goes live, I just won't be back until it's fixed. Sorry Dice.
Perhaps the judge doesn't administrate an email server. If he did, he'd surely be advocating the death penalty instead.
Paul Murphy
http://www.murphymaphia.com
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.
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....
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.
/. If the government wants us to respect the law, it should set a better example.
If you RTFA (yeah right), you know that the main spammer, Jeremy Jaynes, remains convicted.
It is his sister, Jessica DeGroot, who had her conviction overturned. Unfortunately, TFA is rather short on details.
Here is a better article: http://www.leesburg2day.com/current.cfm?catid=19&It goes on explain why DeGroot's conviction was overturned. The only piece of evidence that the prosecutor presented against her is a credit card statement showing purchases of those domain names used by the spammers. However her lawyers contend that it doesn't prove that she actually made the purchases; her brother or someone else could've used her card to purchase those domain names.
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.
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.
I blogged something about this today here. Seems that prosecutors had plenty of dirt to prove Jessica's involvement, including an incriminating to-do list with her name all over it. Jon Praed presented a copy of these documents at the 2005 MIT Spam Conference, video of which is linked from my blog. Praed explained that, due to a legal technicality that's beyond me, the evidence was not admissible.
Perhaps because it isn't true.
1) The "10,000" is just part of the definition of spamming in this law -- 10,000 per day. Accordng to the prosecutor, Jaynes was rated the eighth spammer in the world. For example, he sent spam to 80 million AOL.com addreses, repeatedly
2)It was 9, not 7 years
Neither the submitter, editor, and hardly any of the commenters seem to have actually RTFA...
A judge may not overturn a conviction simply because he would have personally found the defendant not guilty. He has to find that if the jury was acting fairly, then the conviction could not be possible. i.e. That no jury acting fairly could possibly have reached that guilty verdict.
I believe this judge was merely speculating why the jury reached the wrong verdict. I dont think there actually needs to be any finding of a specific 'cause' for the juries incorrect verdict. The statement to "confusion" is merely obiter. The court likely concluded the jury was not doing its job, which is to be FAIR and UNBIASED in its deliberation.
(as usual the media completely fails to report enough information to make sense out of what actually took place in the courtroom.)
This usually means that was no evidence before the court capable of supporting the juries conclusion, and therefore the jury either misunderstood or was using external evidence to reach its verdict, or was being vindictive and punishing the accused merely because of the victims suffering, or its outrage at the crime, rather than the evidence of guilt.
If you were tried with murder, and the murder victim was clearly still alive (and especially if the prosecutor admits the victim is alive, and the defense called the victim to the stand to attest to that), then the jury *must* acquit. The evidence can not possibly support a finding of guilt. Even if the accused was covered in the "victims" blood, and the "murder weapon" was found, and motive and opportunity was proved. If the victim is alive, then clearly no murder could possibly have been commited (unless they conclude that someone ELSE was murdered). In this case the jury must have misunderstood the evidence. That is kind of a crazy example, but it is a situation where an appeals court would reverse the jury's verdict.
Put basically... mere disagreements do not overturn decisions. More is required.
No one has a right to their *own* opinion. They have a right to the TRUTH.
"Will other convicted spammers now have grounds for an appeal?"
Anyone who is convicted on the basis of evidence which can not possibly cause a reasonable and unbiased person to reach a guilty verdict has always had a grounds for an appeal. This is nothing new. Nor is it restricted to accused spammers.
The jury has a responsibility, not only the accused, but also to the 'people' to be fair and unbiased in its findings.
Among other things, this means its findings must be objectively plausible. The jury may not create fictions out of whole cloth.
If the prosecution (as the CNN article seems to imply) could not find a single person to come forward and claim they received unsolicited email, and if the accused testified and claimed they never sent unsolicited email, then the jury could not arbitrarily decide to conclude the opposite of the only evidence before the court.
If that was a necessary element of the offence, then guilt can not be proved.
If they said 'guilty' then either they made a mistake or they were not being fair and unbiased.
No one has a right to their *own* opinion. They have a right to the TRUTH.
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.
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.
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?
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.
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.
Spoken like a true spammer.
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)...