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4th Circuit Court Sides With a Spammer
bulled writes to tell us about coverage on CNet regarding a ruling a couple of weeks back that allows a spamming company to procede with their suit against a spamfighter. The 4th Circuit court ruled that the U.S. CAN-SPAM Act, much derided here, trumps the Oklahoma law under which anti-spam activist Mark Mumma sued Omega World Travel for spamming him. The ruling allows Omega World Travel's countersuit, for defamation, to go forward. From the article: "'There's been a lot of activity in the states to pass laws purportedly to protect their citizens' from spam, said Eric Goldman, a law professor at Santa Clara University. 'The 4th Circuit may have laid waste to all of those efforts.'"
and rot in hell...
FTA
This ruling could prove to be a setback for other antispam activists for one major reason: It suggests that, thanks to the Can-Spam Act, state laws prohibiting fraudulent or deceptive communications won't be all that useful against junk e-mail.
Basically, as far as i understand it, states will have a much harder time of protecting their citizens from spam.
"No doubt one may quote history to support any cause, as the devil quotes scripture." - Learned Hand
Try modding these messages down next time, and you might get less of them...
If construction was anything like programming, an incorrectly fitted lock would bring down the entire building...
If he sued a company under an existing law, and a court later found that a federal law outweighed the state law, how can the person suing possibly be held responsible? How can it be considered his responsibility to know the judgement of the circuit court before he even filed the case in the first place?
The laws of probability forbid it!
In that case, I guess the judges shouldn't object if we forward our spam to them.
anti spam "activist"? wow, some people have really fucked up priorities. who cares?
You could say the same thing about people who breed cats, clean up highway trash, attend scifi conventions, babble on slashdot, attend soccer matches, or obsess about their particular pet Linux distro. At least this guy's passion happens to involve punishing people who cost the economy billions of dollars in lost productivity, bandwidth, and resources.
Don't disappoint your bird dog. Go to the range.
is quoted. That strikes down the application of Oklahoma's law, which the judge ruled
And then, the judge ruled that it didn't violate the CAN-SPAM act (The apellant, mummagraphics argued that the senders of the e-mails mislead mummagraphics as to the origin of the message, when the judge pointed out that it was a marketing e-mail- hence, it had all sorts of links and phone numbers and stuff to contact the people who had sent it.)
With all that established, the appellants had no case.
There's nothing fundamentally wrong with this, unless you have a problem with the doctrine of preemption- and if you do, that's a much, much larger issue than just spam e-mail.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
J. Harvie Wilkinson III wrote this opinion in the 4th circuit. He's Reaganite authoritarian on the most "conservative" appellate bench in the country. You might remember him as the brave patriot who upheld the right of the executive branch of the US Government to indefinitely detain any US Citizen with no access to counsel, court, or any legal process to challenge that detention.
Basically, the 4th circuit is an incredibly hostile place for "the little guy" when challenging a big business.
-Isaac
I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.
Ironically enough, when I read the article, and advertisement for www.cruise.com, the spammer in question, appeared at the bottom of the page. I wonder how many people will read this article and then feel inspired to shop for a cruise from them?
The people who care are the mail system administrators. Last week my company got 7000 email messages, of which 5500 were rejected at the first level mail handler and about half the remainder were still spam. I have to let that much through to prevent false positives.
This doesn't include the dictionary attacks (15000 last week) or hacking attempts (54).
The cost in my time is hours per week in updates and security checks.
before we get into a pissing contest about what company does what... i work for a major metro hospital. we are currently deleting about 65000 messages every 12 hours. this is stuff we consider obviously spam through a quite sophisticated algorithm. 65000 represents 86% of our email. now, ask me again why this matters.
.....I have come to the decision to NEVER do business with your company, nor any of its subsidiaries. Your decision to utilize a means of advertising at the expense of consumers highlights the general business attitude your company has taken. Further emails to me will only reinforce this opinion, and quite possibly trigger a public effort, on my part, to make known to as many consumers as possible, via the internet, and any other means available to me, that your company is taking part in illegal activities (email advertising) at the expense of the very customers you are trying to do business with."
I send this to as many spam adverts as I can. I simply cut and paste the exact same reply. And NOT to the address contained in the advert. I look up the SALES dept. address and send it to THEM. In EVERY instance I have done this, the mails stopped.
I know a few of you will probably say "What's the judges email address, let's get him some spam"
It will not work. The judge probably has the best spam filter money can buy- an assistant that prints off legitimate emails for him to read, or deletes spam every morning for him.
That's true for just about anyone who is involved in legislation that can stop spam. Except for their home email account, they are probably ignorant of what the real world is like.
That's a deceptive misquote of the statute, which actually reads
This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.
The judge then took a narrow view of that language. His reading of the CAN-SPAM act is that "falsity or deception" above must rise to the level of a tort, and that the false information must constitute a "material deception". He then looks at the language of the CAN-SPAM act's criminal provisions, which prohibit the initiation of a "transmission to a protected computer of a commercial electronic mail message if such person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message". Applying that language to divine the intent of Congress, the judge then rules that deceptive material in a spam e-mail must be believed by the recipient, and about a material fact, to be actionable.
Now, given the facts in this case, that's not totally unreasonable. The e-mails bore a return address of "cruisedeals@cruise.com", which was non-functional. But the messages were, in fact, advertising "cruise.com" and were in fact initiated by the operators of "cruise.com". So this is not an anonymous spammer.
This is key. The CAN-SPAM act protects spammers who properly identify themselves. (Those are today routinely caught by spam filters.) That was the clear intent of Congress, based on lobbying by the Direct Marketing Association. There was no willful obfusication by the sender here; it was clear that "cruise.com" was behind all this.
This decision doesn't provide any relief for anonymous spammers and scammers.
Don't bother. None of the editors around here have even seen a dictionary, let alone realize that "procede" doesn't exist in any of them.
Many would argue that use of "procede" is perfectly cromulent.
The theory of relativity doesn't work right in Arkansas.
Even better, you should tell them. Say to them "I am going to disable the spam filter for you for one week. At the end of the week, come back and tell me you don't think the filter works."
Living With a Nerd
as I have said many times, america is over
This doesn't work in most cases, since your friends aren't usually going to quote C. S. Lewis at you. Therefore, anything which sounds like classical literature is spam.
How many people can read hex if only you and dead people can read hex?
the judge took the spam companies offer to help him enlarge his penis.
Perhaps he got his Un1v3rsi+y d3gRe3 online, too...
Seven puppies were harmed during the making of this post.