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. '"

Comments

uncomfortable...

[LingNoi]

Talk about uncomfortable...

Prosecutors presented evidence of 53,000 illegal e-mails Jaynes sent over three days in July 2003.

Email 1 - Do you want enlarge your penis? g39
Email 2 - Order Viagra - Fast, Easy and Confidential. Special suggestion for you!
Email 3 - Most popular ma|e organ enlargement

..... 15 Hours later .....

Email 52,999 - C|al_is 20mg x 10 p1lls = $89.95
Email 53,000!

*hears a sigh of relief from the jury*

My first "You're advocating a ..."

[jonaskoelker]

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?)

Others Pay for It...

[Phoenix-IT]

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.

Re:Others Pay for It...

[Blkdeath]

$42.95 a month, huh? Every month? As in flat rate... like most people... who will pay the same rate every month... whether they receive one email or 100... How are you paying for that spam again???

Because it's $42.95/month instead of $32.95 you blithering idiot.

Yes, I'm using ad-hominem because throughout this entire thread all you've done thus far is piss on all logic that's been presented to you. You have no idea about the costs of running a business, no idea of how an ISP works, no idea about the demands of a real-world e-mail server with or without spam protection measures and no idea of any of the costs involved. Those costs are passed on to the END USER along with the bottom line of the recipient ISP and all ISPs in the transit stream. This is ILLEGAL, and the proof is in all other mediums; fax spam and telemarketer calls to cell phones are illegal because the RECIPIENT pays, not the sender. Do you understand that?

You say the spammers pay for bandwidth? Do you know how SMTP works? That a spammer can send a single e-mail to HUNDREDS OF PEOPLE at THEIR EXPENSE? Do you understand that the majority of all spam e-mail comes from the bandwidth of other END USERS on compromised machines? That spam is such a large black market business that there are gangs of programmers out there creating trojans and bot-nets for the express purpose of creating armies of spam bots to satisfy the demands of pieces of garbage like the one on trial at the moment?

Do yourself a favour and shut up. You're embarrassing yourself and god are you ever annoying in that whiny brat in the supermarket cereal aisle kind of way.

argh

[nomadic]

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.

Re:You should be able to send all the spam you lik

[techno-vampire]

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?

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.

Re:Spam is a freedom of speech issue

[EVil Lawyer]

From your post, one might think you don't know what "freedom of speech protection" really means. The protection is from the government's interference with your ability to speak freely, not with anyone else's interference. If you and your friend communicate by shouting at each other through open windows in buildings close to each other, and someone erects a building in between your and your friends', which now makes it impossible for you to communicate in the way you'd prefer, this is not a violation of the protection of freedom of speech.

Re:You should be able to send all the spam you lik

[pokerdad]

Yes. Sometimes there are things in the junk mail that are useful, such as ads from supermarkets.

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.

Re:You should be able to send all the spam you lik

[NetSettler]

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 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.