Slashdot Mirror
Court Finds Spamming Not Protected By Constitution
eldavojohn writes "In a split (4-3) decision, a Virginia court has upheld the verdict against the spam king making it clear that spam is not protected by the U.S. Constitution's first amendment or even its interstate commerce clause. 'Prosecutors presented evidence of 53,000 illegal e-mails Jaynes sent over three days in July 2003. But authorities believe he was responsible for spewing 10 million e-mails a day in an enterprise that grossed up to $750,000 per month. Jaynes was charged in Virginia because the e-mails went through an AOL server in Loudoun County, where America Online is based. '"
Email 2 - Order Viagra - Fast, Easy and Confidential. Special suggestion for you!
Email 3 - Most popular ma|e organ enlargement
Email 52,999 - C|al_is 20mg x 10 p1lls = $89.95
Email 53,000!
*hears a sigh of relief from the jury*
...so long as there is one corresponding piece of regular mail, sent to "Resident" if nothing else, at a distinct address in another zip code, for every email.
That would let people express themselves with all sincerity, and help keep the postal system afloat.
An all-around Win!
Get thee glass eyes, and, like a scurvy politician, seem to see things thou dost not.--King Lear
Your finding advocates a
( ) technical (X) legislative ( ) market-based ( ) vigilante
approach to fighting spam. Your idea will not work. Here is why it won't work.
(One or more of the following may apply to your particular idea, and it may
have other flaws which used to vary from state to state before a bad federal
law was passed.)
( ) Spammers can easily use it to harvest email addresses
( ) Mailing lists and other legitimate email uses would be affected
(X) No one will be able to find the guy or collect the money
( ) It is defenseless against brute force attacks
( ) It will stop spam for two weeks and then we'll be stuck with it
( ) Users of email will not put up with it
( ) Microsoft will not put up with it
( ) The police will not put up with it
( ) Requires too much cooperation from spammers
( ) Requires immediate total cooperation from everybody at once
( ) Many email users cannot afford to lose business or alienate potential
employers
( ) Spammers don't care about invalid addresses in their lists
( ) Anyone could anonymously destroy anyone else's career or business
Specifically, your plan fails to account for
( ) Laws expressly prohibiting it
(X) Lack of centrally controlling authority for email
( ) Open relays in foreign countries
( ) Ease of searching tiny alphanumeric address space of all email addresses
(X) Asshats
(X) Jurisdictional problems
( ) Unpopularity of weird new taxes
( ) Public reluctance to accept weird new forms of money
( ) Huge existing software investment in SMTP
( ) Susceptibility of protocols other than SMTP to attack
( ) Willingness of users to install OS patches received by email
( ) Armies of worm riddled broadband-connected Windows boxes
( ) Eternal arms race involved in all filtering approaches
(X) Extreme profitability of spam
( ) Joe jobs and/or identity theft
( ) Technically illiterate politicians
( ) Extreme stupidity on the part of people who do business with spammers
( ) Dishonesty on the part of spammers themselves
( ) Bandwidth costs that are unaffected by client filtering
( ) Outlook
and the following philosophical objections may also apply:
( ) Ideas similar to yours are easy to come up with, yet none have ever
been shown practical
( ) Any scheme based on opt-out is unacceptable
( ) SMTP headers should not be the subject of legislation
( ) Blacklists suck
( ) Whitelists suck
( ) We should be able to talk about Viagra without being censored
( ) Countermeasures should not involve wire fraud or credit card fraud
( ) Countermeasures should not involve sabotage of public networks
( ) Countermeasures must work if phased in gradually
( ) Sending email should be free
( ) Why should we have to trust you and your servers?
( ) Incompatiblity with open source or open source licenses
( ) Feel-good measures do nothing to solve the problem
( ) Temporary/one-time email addresses are cumbersome
( ) I don't want the government reading my email
( ) Killing them that way is not slow and painful enough
Furthermore, this is what I think about you:
( ) Sorry dude, but I don't think it would work.
( ) This is a stupid idea, and you're a stupid person for suggesting it.
( ) Nice try, assh0le! I'm going to find out where you live and burn your house down!
(My first of these; how did I do?)
When you're sending millions of messages a day to people who don't want them and other people (usually the ones footing the bandwidth bill) are paying for the connection, you are guilty of stealing at the very least... And in the case of mass spammers you're stealing a whole lot of bandwidth you're not paying for.
Can we get a little editing please? You don't have to be a lawyer to know that a jury would never be able decide on the constitutionality of a statute, so you should know something is wrong with the headline right off the bat. The Virginia Supreme Court is not a jury.
the verdict should have been announced to him over 50,000 times
The pissed off SOB whose network bandwidth is consumed, the guy who sees a 400-1 spam to signal ratio, and the one who has to actively clean this shit for everyone I host, I'm HEARTILY glad that this fucker got himself leaned over the judicial bench and was probed, rectally, with the judges' gavels.
And the dissenting judge's comments about restraining speech for political and religious spam? If a Hari Krishna or a LDS evangelist, or a Politico I don't like comes to my door, I have the right to slam the door in their face and choose not to "receive the message". And if they drop their crap on my doorstep, I get fined for littering.
People buried under torrents of spam don't get this option.
Chas - The one, the only.
THANK GOD!!!
1.) The VA Supreme Court made the ruling, not any federal court, and certainly not a jury.
2.) Because it was a state court that made the ruling, what they say about whether or not SPAM is protected free speech is completely irrelevant. State courts have no jurisdiction over federal questions. They can no more declare SPAM not protected than they can declare that you really only have to be 32 to be President.
3.) This will obviously be appealed to the Supreme Court (that's the only outlet left after traversing the State courts), and, my guess is, it'll be shot down. The defendant's attorney is correct when it states that the VA law doesn't make exceptions for explicitly protected free speech, such as political speech, and the Supreme Court's strict scrutiny standard for this kind of thing won't let it through. VA may re-write the law to prevent commercial SPAM as different from SPAM that's simply expressing an opinion, but that'd be open to a variety of challenges as well.
4.) Nine years? What the fuck?! I mean, I hate SPAM as much as the next guy, and I spend a stupid amount of time keeping it out of the inboxes of my users, but nine years?!
is how close it was. A 4-3 decision isn't very comforting. Who were the three?
Spam is not, and has never been a free-speech issue. It's a property rights issue. The spammers' right to speak does not include a right to use other people's equipment to do so.
This spammer has committed millions of counts of unauthorized use of property, along with fraud.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
Do you realize that 'mail to resident' is where SPAM first got started, all those years ago? If it weren't for that then it's postulated less likely that email SPAM would have ever been conceived of in the first place. I don't know if you're in the United States or not, but what was the last time you really took a look at all the junk snail-mail you get every month? Try this experiment: save all your junk snail-mail for a whole year, and then weigh it, measure it's volume, and multiply that by every household in this country. Do you really think that the amount of money they're paying to get that unasked-for (lack of) content into your mailbox really does anybody any good? Or is it just a waste of natural resources, and furthermore making an already fat, slow, outdated U.S. Postal Service slower than it has to be?
Neither thing, or it's offshoots (telemarketing, junk FAX, etc) should exist, simply because they're all so highly abused, and it's basically impossible IMHO to regulate them.
My emails to my friends get caught in the aggressive spam filters that they are forced to use. Spamming is depriving me of my freedom of speech. Spam is shutting down email. That is a freedom of speech issue and jailing spammers protects freedom.
Yes. Sometimes there are things in the junk mail that are useful, such as ads from supermarkets. Also, people are paid money to create those ads, print them, address them and mail them. Not only that, the USPO is paid at bulk mail rates for carrying them. If it weren't for junk mail, first class mail would cost considerably more than it does. Junk mail subsidizes regular mail and helps keep costs down. The big problem with spam is that it doesn't cost the spammer anything to send, the costs are spread out among everybody receiving it and ISP fees would be lower if there weren't spam. It's not that it's junk that makes it so bad, it's the expense to the recipient.
Good, inexpensive web hosting
Your finding advocates a
( ) technical (X) legislative ( ) market-based ( ) vigilante
approach to fighting spam. It worked in this instance. Here is why it won't work again. (One or more of the following may apply to this particular criminal, and (s)he may have other flaws which are not listed.)
( ) The spammer was dumb
(X) (s)he lived inside the united states
(X) They made too much money
(X) They had been doing it too long
(X) They stole from a corporation
(X) Didn't leave the country quick enough
Specifically, your technique fails to account for
(X) few spammers get caught
and the following philosophical objections may also apply:
(X) taking out one spammer, 10 more pop up
There are very much files that the existence of the file is illegal:
"Illegal pictures"
Specifically, pictures of people under 18 years of age in certain states of undress, or having sex.
What is worse is when the act itself is legal, but a picture of that act is illegal, like a 17 year old taking a picture of their genitals.
My big problem with having entire categories of illegal files is that it is easy to frame someone. Just copy some files off a memory card, or spam someone with images, and then they can be charged with several felonies.
Sexual assault is something else, and that should be illegal. But someone taking a picture of themselves and then because of that getting convicted of a felony? That is just insane
If I have nothing to hide, don't search me
Ah, I see. I would agree with your original argument in spirit at least, but in practical terms it would never work because you'd more or less be asking spammers to self-regulate, and historically speaking it's already been proven at least a million times over that they're unwilling and incapable of doing so. That leads us right back to where we already are. Really it's a case of excesses, and this chap who is going to be doing jail time is as good a poster-boy for these sorts of excesses as any other spammer could be. Beyond that, if there was some sort of actual cost involved in mass-market direct emailing, then legitimate operators still wouldn't go for it because in their perception they'd be spending twice as much to accomplish the same thing, whereas the draw of spamming is that it costs little to nothing comparatively.
It's not a free speech issue, it's a harassment issue. We all know that there are limits to speech when someone else's livlihood is at stake (shouting "fire" in a crowded theater, to use the classic example.) To say spammers have the right to spam is like saying the first amendment gives someone the right to follow you around with a megaphone shouting advertisements into your ear.
An object at rest cannot be stopped.
Leave it to slashdot to get the headline dead wrong. Actually, this was an appeals court decision, there was no jury involved in this ruling. A jury finding of guilty was several years ago, and the spammer has been out free on appeal enjoying his ill gotten gains ever since. The ruling on interstate commerce issues and first amendment issues was not made by a jury. Curiously, there seems to be no word on him actually reporting to serve his sentence, so he may still be free.
I'm an American. I love this country and the freedoms that we used to have.
If you run a blaring loudspeaker van through a residential neighborhood at 4AM it doesn't matter whether the material you're playing is "constitutionally protected speech" or not. You're still subject to noise abatement laws.
The whole issue of freedom of speech is a red herring.
AIUI, junk mail helps keep First Class rates down because that's the way the bulk mail rate was designed. It's less than First Class, but more than it costs to process, leaving some extra to help defray other expenses. The way it works is, bulk mail must be pre-sorted by zip code in order to qualify. This cuts down on the amount of work considerably, so that even at a reduced rate, bulk mail costs the Postal Service less to deliver than they charge. Also, of course, much of it is sent locally, which lowers expenses even more.
Good, inexpensive web hosting
Four years ago my wife and I moved into a house, having lived in an apartment before that, and discoverd that the amount of junk mail we were receiving was much much more. Within a short time I was getting so upset about it I was going to put a No Flyers sign out (Canada Post and many flyer delivery companys in Canada won't leave unadressed junk at your home if you simply put a sign saying "No Flyers") when my wife stopped me, explaining that while she disliked the quantity of crap we were receiving, there were certain flyers she had to have and as such a "No Flyers" sign was unacceptable.
I shudder to think of how many trees died so my wife could know what was on sale each week at Zellers and Walmart.
This is a bad day for the first amendment, damn that bush for taking all our rights away.
Maybe the guy should attempt to argue jurisdiction like the wikkileaks guy was, maybe then he could get around it.
Seriously now, I don't like Spam as much as anyone. Well, I guess I don't like it less because I simply don't get that much but that is another story. Anyways, I find it ironic how temperamental we are with who's causes we want to support. A site leaking banking account numbers and personally identifiable information is a champion while a guy who mass mails flyer's through a computer system instead of the postal system is scum. I'm not sure where the big difference is. I have heard people claim it is because people pay for their bandwidth yet I don't see a anyone setting up a sender has to get permission first policy for all email. I mean the dork who forwards every joke he can find multiple times to everyone who already is listed in the forward marks of the email because he somehow added them all to his address book isn't getting in trouble. I don't know how many times I got that stupid Microsoft is giving you a cup holder email, I have to forward it to an account I could check in windows just to see what it does- tell me that isn't junk.
I think we are seriously going in the wrong direction here. Not because I think anyone has a right to spam, but because spam is now not covered by the first amendment and you should ask how this will play out when there is a mailing list or something for a political action commity or group. Will the leaders of that be jailed and fined because their spam isn't covered by the first amendment? You know, if the treasurer of Ohio can call five times in 2 days with a recorded message saying that Ohio will make sure you get to the polls if you vote for obama just call some number, and Sears can call me 2 or 3 times saying they are having a sale on items I am interested in, I see no different then this guy sending spam out.
> Jury Finds Spamming Not Protected By Constitution
No. The jury found him guilty. The judge disallowed his First Amendment defense. Constitutionality is not a jury question.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
I don't think you're selling people short. I think it's "obvious" that it was inevitable that it would be tried. I'll explain why...
I think where you're right is that there is a commonplace two-step meta-pattern where an idea is tried for an innocent reason and after succeeding someone tries to repurpose the idea for other purposes. So in your case, you're suggesting that if 'mail to resident' hadn't happened, variations and repurposing would not have been able to happen. Probably. But 'mail to resident' wasn't a one-time shot that if it didn't happen on a certain day wouldn't exist. It would have come another day. And even if not, other equivalently powerful and repurposable ideas would have.
For example, 'mail to many' is capable of being repurposed in the same way. Multiple-recipients could be said to be just as enabling. It wasn't in paper mail, after all--a piece of mail mostly went to one recipient (except those interoffice memo things where you could keep re-forwarding the same junk, checking off your name). So once the cost of sending to many was lowered to just naming who gets copies, that was also an enabling factor.
Many years ago (somewhere around 25 years ago, I think), when email was still young (not brand new, certainly, but still not heavily evolved) and when there were not many machines on the then-ARPANET, I obtained a piece of software written by someone at a certain texas university that was on the net. I wanted to reach the author, but had no idea how to find him. So I sent an email to smith, asmith, bsmith, etc. up to zsmith hoping to find someone at that site that knew the guy I wanted to reach. We didn't get tons of email back then, so this wouldn't have been obnoxious like it was now... There was no web back then, and no search engine. I don't even know if there was the 'postmaster' convention yet. (Maybe if there was I'd tried it and failed to get a response.) And hsmith replied, by the way, offering just the helpful info I'd hoped for. The rest of the mail bounced. I never used the technique again, but would not have hesitated to recommend it to another if they were desperate. My point in telling the story is just to say that ideas like this do present themselves when people are faced with barriers. It's the natural way things go.
So I doubt any claim that if 'mail to resident' hadn't happened, SPAM wouldn't have either. Because if someone could come up with the idea of blasting out a query for benign reasons, someone could conceive of pushing that to whatever limit made financial sense.
You could almost make the case that if 'mail for free' had not been invented, no one would have wanted to send tons of mail to people who might not care. That would have reduced volume. But there is a large and thriving junk mail industry even when stamps cost money, so even that isn't true.
I do think that "free email" is the real culprit. We all say we like it, but most of us pay more per year in time and money getting rid of spam than we would pay to deliver mail. In effect, we all subsidize spam in the guise of getting something for free... On net (pardon the pun), we don't get email free, and it would be lower cost if we charged for it.
The same is true for physmail junk mail, by the way: We subsidize it by the lower prices it gets. That's a business decision by the post office, but in the interest of the overwhelming resource usage and waste disposal concerns, I think it's ever more clear it should be at least the same price, if not much higher. But the problem isn't (any more) send to resident, since now they all swap mailing lists. The problem is, again, 'send to multiple'. And with global warming upon us, the stakes are even higher than with email spam.
Kent M Pitman
Philosopher, Technologist, Writer
the "broken glass" fallacy states that a broken window is good for the economy because someone has to make a new window, someone has to make a hammer and nails to hold in the new window, someone has to install the window, etc. This destructive act - breaking a window - is a boon.
The reason that it's a fallacy is that it assumes the money spent on repairing the window wouldn't have been spent somewhere else, somewhere more productive. In an economy, it is always better for a new thing to be created than for an old thing to be replaced.
This isn't exactly what we're talking about with junk mail, but it's close. Yes, regular mail would be more costly, but the post office would also be spending a lot less on gas to lug all that junk mail around. Yes, junk mail designers would be out of a job, but their skills could be employed somewhere else, potentially somewhere more productive. The fact - and it is a fact - that junk mail has positive benefits does not mean that it is optimally beneficial.
Thomas Galvin
No they don't. They infect machines through viruses/trojans/whatever, creating botnets that proceed to send spam for a short time until they get blacklisted. My boss at work took one a few days ago, resulting in out whole network being blacklisted. Along with our mailserver (YAY!)
ISP fees would be lower?Yes, no need to set up complex antispam systems, fund independent systems that keep blacklists of hosts, use spamtraps etc etc. Most professional installations of mailservers do use paid RBL sites.
Expense to the recipient?To go back at my work example. I hadn't blocked access to port 25 through the firewall because some people in the office check/use their private mail, not passing through the company mailserver for sending stuff. Then my boss got a virus, everything got blacklisted and basically we had to sustain the following expenses:
How about coming back with some facts next time?
nbody2002:If you can read this you may be addicted to the internet
It's nowhere near a broken glass fallacy. This isn't a case of an illegal act, it's a case of a legitimate business model that employs many. If the postal service wanted to do away with it all they'd have to do is stop accepting it and it'd be over with. They don't. Why? Because it subsidizes their business model, it keeps their employees working, it fills in the gaps in their daily routes (eg; long stretches of houses that otherwise wouldn't receive any mail on a given day) thereby making the routes more predictable and efficient.
As to the inception; the ads you get in your mail are paid for by local businesses targeting specific areas of interest. A window company working in the area offering a promotion so they can employ their guys in a centralized area thereby keeping costs down and passing them along to the residents, a car dealership offering a sale for residents in their vicinity, a snow clearing service, etc. These businesses pay for this mail to be created thereby creating jobs in the printing and postal industry AND if they've done their homework and targeted properly they'll increase company revenues thereby creatinug work for their employees and increasing their own bottom line.
With recycling programs in high gear in most(?) heavily populated areas the resultant flyers are generally disposed of in the "blue bin" (or the local equivalent) and recycled to create new products and new employment opportunities.
There is no "broken window" fallacy here because the money was intended to be spent on targeted advertising in the first place. Try to do some research into retail outlets' advertising strategies and you'll see what I'm talking about.
BD Phone Home!
Shameless plug. Like you weren't expecting it.
Just one of my domains receives more than 400000 (as in 4E5) emails a day - all but a few dozen complete junk. If left unfiltered, this completely swamps the 5Mbit broadband connection, leaving it useless for anything but delivering viagra ads. With a complex system of auto-whitelist, auto-blacklist, bayesian filtering, SPF, domain reputation, and temporary IP banning, I get this down to a steady trickle of 56Kbit (day) to 400Kbit(4am) email traffic. This makes the internet usable, but then there are occasional false positives resulting in important mail being lost. On the other hand, delivering all the spam would result in essentially *all* the important mail being lost among all the spam. No, this is not an ISP, but just one guy with one mailbox selling stuff from a website. Every false positive means a lost sale. Furthermore, maintaining the filter to keep up with the constant arms race with spammer technology is a huge waste of developer time (even more so than reading slashdot).
So yes, receiving spam is incredibly expensive, and the perpetrators are just as much thieves as the guy robbing a bank. After all, one bank robbery doesn't cost any one person all that much ...