Virginia Top Court to Re-Hear Spammer's Conviction

arbitraryaardvark writes "Mega-spammer Jeremy Jaynes was convicted in Virginia of spamming in '05, sentenced to 9 years, and lost his appeal, 4-3, at the Virgina Supreme Court. But the court has just ordered a new hearing on whether the anti-spam statute is unconstitutional under the First Amendment. Slashdot previously covered the appeal and the conviction."

Comments

First Amendment covers ads?

[moderatorrater]

Does the first amendment apply in this case? The man is sending mail from overseas servers that have no intent other than selling something. I know that the first amendment doesn't cover dangerous communication, or communication about illegal acts, but does it cover bad, mass advertising that costs the end user money and that they can't really opt out of?

Re:First Amendment covers ads?

[Awptimus Prime]

Does the first amendment apply in this case? The man is sending mail from overseas servers that have no intent other than selling something. I know that the first amendment doesn't cover dangerous communication, or communication about illegal acts, but does it cover bad, mass advertising that costs the end user money and that they can't really opt out of? I'd like to think it does.

Re:First Amendment covers ads?

[omeomi]

I guess we'll find out soon enough, won't we. Either the Virginia Supreme Court will decide, and the US Supreme Court will decline to take the case, or the US Supreme Court will decide. Then we'll know, I guess. I wouldn't think the use of overseas servers would make any difference, though, if the communications originated from a US citizen, I would imagine the 1st amendment would apply.

Re:First Amendment covers ads?

[eln]

I would think that the first amendment definitely covers advertisements. If we decide the first amendment covers all speech except for the speech we find annoying, it isn't very useful.

However, in the case of spam, the spammer is forcing the recipient to pay for his speech without consent. That is why spam should be illegal, not because it's trying to sell something.

Re:First Amendment covers ads?

[Grokmoo]

It seems strange to me that so many people on slashdot (and more generally on the internet at large) seem so gung ho free speech, yet at the same time are ready to burn spammers at the stake.

I am sorry for your inconvenience, but I think free speech is a little bit more important than that.

Re:First Amendment covers ads?

[trolltalk.com]

The first amendment doesn't cover theft of resources, scamming, lies, shouting "fire" in a crowded theatre, etc.

The "theft of resources" was already dealt with by people who successfully sued for junk faxes. The first amendment doesn't apply.

The scamming and lies are covered by various legislation that requires truth in advertising.

The "shouting fire" was decided LONG ago ...

Hopefully, this is only going to appeal so that the guy wastes more $$$ and still gets the door slammed on his much-pounded-upon ass.

Re:First Amendment covers ads?

[Anonymous Coward]

The guys suggesting this is covered under 1st amendment should be sentenced to hearing a guy yell in their ear after every 2 minutes. It is allowed to use cotton.

Re:First Amendment covers ads?

[Anonymous Coward]

"Free" Speech doesn't mean you don't have to pay for the newspaper space - or the postage stamps - or the broadcast time.

Free Speech means you won't get locked up for standing in the park talking to anyone who will listen.

Please try to understand the difference.

Re:First Amendment covers ads?

[theoneandonlyed]

That's exactly it. No one is questioning the spammer's right to say something, or to sell his product. He can sell it on the streetcorner, in a shop, wherever. He can advertise it on TV, on billboards, on the Internet. What is, or should be, illegal, is sending it to the private e-mail accounts of people who don't want it, at the expense of their service providers. If that action is covered by free speech, then I should be able to throw a brick through your front window, step inside, and start hawking my wares to your family during your dinner hour. "Hey, just exercising my right to free speech!" The disturbing thing here is that any U.S. court would even entertain such a patently ridiculous argument.

Re:First Amendment covers ads?

[tompaulco]

Spammers can advertise all they want, I have no problem with that. Nowhere in the first amendment does it say that the citizens of this country have to pay for a megaphone for every crackpot that has something to say.
Even aside from the monetary argument, someone else's right to free speech does not mean that I am required to listen, only that I don't have the right to gag him. No one has the right to come to my home , stand on my doorstep and shout out their opinions. Instead, they can feel free to shout their opinions in a public forum and I will come listen if I feel like it. The electronic equivalent to this is that the spammer has a website which I can visit if I choose. He can even pay to advertise it on other websites I might visit. If he wants to advertise it in my e-mail, that is fine as well, but he needs to pay me for that privilege.

Re:First Amendment covers ads?

[dgatwood]

The appeal definitely won't go anywhere. Commercial speech is the least protected of all categories of speech and can be fairly thoroughly subjected to time, place, and manner restrictions. These, in turn, have a four-part test for their constitutionality:

• Is the restriction content-neutral? It passes this test because it applies to all commercial speech, not just ads for certain types of products.
• Does the regulation support a significant governmental interest? Yes. It is designed to reduce the severe burden that processing this junk mail causes to the citizens of the country as a whole.
• Is it narrowly tailored? It passes this test because it is carefully crafted specifically to limit the harmful effects of the speech--specifically, the electronic equivalent of littering--without preventing legitimate communication between a company and its clients (with explicit opt-in and real opt-out).
• Does it leave open ample alternative channels of communication? It passes this test because again, it allows this communication, but only with consent.

Re:First Amendment covers ads?

[hedwards]

It's not even a little bit strange. You don't find many here that support false advertising, not slightly misleading or mistaken either, but full on fraudulent adverts for items. Nor do you find many people here that think that a person has a right to an audience. If nobody wants to here what it is that you have to say there is no right to force them to listen.

And likewise in this case, you're combining those things to make something which is ultra offensive to many. You're using other people's resources to falsely advertise products and forcing your way into people's mailboxes without any way of opting out.

Re:First Amendment covers ads?

[Ethanol-fueled]

they should also have to pay for a servant to cover their ears when the yeller is yellin'.

Re:First Amendment covers ads?

[dreampod]

This isn't a free speech issue, regardless of how spammers and their lawyers like to spin it. It is an issue of public nuisance. If Mr. Jaynes sat there and typed in each email address and sent it off individually there would be no district attorney in the US would charge him.

He has the right to advertise his products, as annoying as you or I might find it. However he doesn't have the right to impair our ability to communicate freely and burden us with the cost of his advertisement anymore than he could blast his advertisements at 250 decibels down the streets in the middle of the night.

Society has plenty of laws 'restricting' free speech to prevent unreasonable harm and interference with others. Noise control laws, parade permitting, and anti-spam laws all have their place and are perfectly constitutional.

Re:First Amendment covers ads?

[Sancho]

The first amendment, and indeed the entire Constitution, should apply to all citizens appearing before a US court.

Re:First Amendment covers ads?

[Bryansix]

Why do you want the First Amendment to protect spammers? And who in their right mind modded you up! There are obvious restrictions to free speech like when it actually causes real harm. If sending unsolicited faxes is illegal then so should spamming be illegal. It's pretty basic for anyone to understand.

Re:First Amendment covers ads?

[Trailer Trash]

You're right, it does. I'll be over later to spray-paint a message on the side of your house.

See, the first amendment says that the government can't limit my speech. As a private property owner, however, you *can* limit my speech inasmuch as you have to pay for the forum. I'm free to buy my own house and spray-paint the side of it. But when I decide that someone else should foot the bill, that's not a free-speech issue.

Spammers cost other people millions of dollars, in aggregate. The only companies that any one spammer costs a bunch of money are the large AOL/Google/Hotmail/Yahoo types. However, they still cost everybody. People who own and operate mail servers should not have to pay for spam delivery, yet they do.

I'm mystified as to why a court would think the first amendment means that someone should have to pay for someone else's speech.

Re:First Amendment covers ads?

[Sancho]

Free speech generally applies to public forums and areas. My inbox is not a public forum or area, no matter how much the NSA might wish that it were.

Re:First Amendment covers ads?

[frankie]

"Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit.
"We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient. That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."
- Chief Justice Warren Burger, US Supreme Court, Rowan v US Post Office

Re:First Amendment covers ads?

[arbitraryaardvark]

Does the first amendment apply in this case? The man is sending mail from overseas servers that have no intent other than selling something. I know that the first amendment doesn't cover dangerous communication, or communication about illegal acts, but does it cover bad, mass advertising that costs the end user money and that they can't really opt out of?

The first amendment doesn't cover theft of resources, scamming, lies, shouting "fire" in a crowded theatre, etc.
The "theft of resources" was already dealt with by people who successfully sued for junk faxes. The first amendment doesn't apply.
The scamming and lies are covered by various legislation that requires truth in advertising.
The "shouting fire" was decided LONG ago ...

The first amendment does cover ads. see discussion below of central hudson, see also 44 liquormart.
But this case isn't about ads. The first amendment covers lots of dangerous speech, lots of communication about illegal activities, lots of bad ads.
This is a case about whether the statute he was charged under is constitutional. If it's not, it's void and isn't law, and he can't be kept in jail under it, no matter how much we don't like the guy.
The shouting fire case was indeed decided long ago, 1919, schenck v united states. Schenck was put in jail for passing out pamphlets claiming that the draft was unconstitutional under the 13th Amendment. Personally, I think he was right.
The case was overruled in 1968 or 69 in Brandenburg. The reason Schenck is still the first case taught in First Amendment classes is that it was wrong.
Sometimes the theater really is on fire.
It's hard to write a statute that does what you want but stays within the first amendment.
It's easy to write a statute that bans spam, but also accidentally bans slashdot.
- arbitrary aardvark

Re:First Amendment covers ads?

[eln]

I don't see that as relevant because nothing compels you to open spam either. You can set up filters to automatically remove it, unlike postal mail. However, also unlike postal mail, even if the spam is caught and removed by your spam filter, you have still incurred some cost by the time it gets that far. The spammer has used your bandwidth and your CPU cycles, even if you never see the message.

Re:First Amendment covers ads?

[Anonymous Coward]

If we decide the first amendment covers all speech except for the speech we find annoying, it isn't very useful. Well, it would let all those hot stupid girls just be pretty and not turn you off by their pure lack of intellect.

Re:First Amendment covers ads?

[Digi-John]

Bandwidth is expensive. Yes, I know you probably pay a flat rate for cable service or whatever, but the ISP is paying based on how much gets sent and received; if everyone's bandwidth use goes up, the expense will be passed on to YOU. If we could reduce the amount of spam going around, who knows, maybe it would be even cheaper to get Internet access.

Re:First Amendment covers ads?

[icebike]

Mod parent up.

It would appear it has already been adequately covered by the SCOTUS, and the Virginia court is wasting everyone's time and money with yet another hearing.

Re:First Amendment covers ads?

[keithius]

The mailman is just as much a spammer when he delivers junkmail. Do you charge him for using your mailbox ?

The mailman is just the middleman - like your ISP who delivers your mail to you. They didn't send it, the spammer did. Don't shoot the messenger, and all that.

To re-phrase your question: Junk mailers are just as much a spammer when they send you junk mail. Do you charge them for using your mailbox?

Yes. Well, actually the US Postal Service does. The point is, the spammer pays someone to send you junk mail. And that is enough of a deterrent to keep every spam-brained nutcase from sending everyone in the entire country 622 V1AG-RA offers every single day.

With email, the spammer pays (basically) nothing. YOU - the recipient, or your e-mail hosting provider, pay for the bulk of it - for the bandwidth, the disk space, and the time & effort to sort through the sheer volume of it.

Remember: spam wouldn't be such a problem if there weren't so damn much of it! (I know I'd be thrilled if I only got as much spam as I did snail-mail junk mail.)

Re:First Amendment covers ads?

[Spellvexit]

But the company directly paid for junk mail to be delivered to your door, and you can also typically call said company to tell them to buzz off, though I'm aware there are plenty of counter-examples of companies ignoring consumers' requests for removal. However, they are mostly accountable for their acts and they've actually paid for the mailman to deliver the information. The cost to the spammer for delivering more of their spam typically rises in proportion to the amount they want to deliver, as well.

The servers, networks, and end-users who deal with this are the parties who pay in the case of a spammer. Many spammers simply utilize botnets, meaning they don't even pay to run their own machines, completely freeloading off the network. The cost to deliver more spams is usually neglible to the spammer while increasingly burdensome to the network unwillingly supporting it. There's a significant difference between the activities of a spammer and that of physical junk mailer, even if I find both of them annoying!

Re:First Amendment covers ads?

[plantman-the-womb-st]

No one has ever said that being free to say something means that you shouldn't be held to account if what you said caused damage.

Re:First Amendment covers ads?

[joggle]

Do you have a source for that? I'd like to read it.

I once knew a spammer (by family, not by choice) and he would always claim it was protected speech under the 1st amendment despite my protests to the contrary.

Re:First Amendment covers ads?

[Arthur B.]

Don't be mystified, most rights are creepily being transformed into "positive rights", i.e. individual freedom is replaced by collective slavery where everyone owes everyone.

Re:First Amendment covers ads?

[plantman-the-womb-st]

You're right, it does. I'll be over later to spray-paint a message on the side of your house. You can, that's the beauty of freedom, you are free to choose to do this. You are then also free to waive your right to a jury trial when you are charged with vandalism. You are then free to appeal. I'm free to sue you for damages on top of that.

Being free to do something doesn't mean there are no consequences, it simply means you can choose to do something.

Re:First Amendment covers ads?

[Registered Coward v2]

The first amendment, and indeed the entire Constitution, should apply to all citizens appearing before a US court. Actually, it applies to all people on US territory, not just citizens.

Re:First Amendment covers ads?

[Anonymous Coward]

I once knew a spammer I'm glad you took care of him. Thanks :)

Re:First Amendment covers ads?

[Sancho]

Yeah, the word "citizens" slipped in there accidentally :( I meant people.

Re:First Amendment covers ads?

[calebt3]

Don't forget trespassing.

Re:First Amendment covers ads?

[Anonymous Coward]

The appeal definitely won't go anywhere.

Meanwhile my snail-mail box will continue to be overloaded with junk mail everyday? Something is amiss.

On another note, I have difficulty with the fact that many my fellow Americans don't have a problem with giving the government the power to put someone in prison for nine years for something like spamming. One year ok, two years maybe, but nine years?

Re:First Amendment covers ads?

[SpammersAreScum]

Preach it, brother. Just as true as when I posted it the last time we had this discussion: http://yro.slashdot.org/comments.pl?sid=472546&cid=22613834

Re:First Amendment covers ads?

[chicago_scott]

The appeal definitely won't go anywhere.

Meanwhile my snail-mail box will continue to overflow with junk mail everyday? Something is amiss.

On another note, it's worrying that many of my fellow Americans have no problems with someone being put in prison for nine years for something like spamming. One year ok, two years maybe, but nine years?

I worry that we are becoming a very punitive people for thing that really aren't that big of a deal.

Re:First Amendment covers ads?

[hackstraw]

I'd like to think it does.

So, I can shout at the top of my lungs in front of your house praising the FSM, and you would have no objection?

Its an old saying, but Freedom of Speech means you can say whatever you want, but it does not mean anyone has to listen to you, or to help you say it.

Re:First Amendment covers ads?

[calebt3]

See this post

Re:First Amendment covers ads?

[Anonymous Coward]

kindly post all your email addresses here so we may sign you up for every bullshit service that exists. provide a home address as well so we can flood your real life mailbox with a few thousand spams, as well as send any door to door salesmen in the area to you.

sound like something you should have to endure in the name of free speech? Doesn't to me because free speech is about ideas, not advertising. And no your 'idea' about a multi-level marketing scam doesn't count.

These people don't just advertise they harass you, i know one guy who's hotmail account gets flooded ever day with over 3500 messages, his bulk mail box is a bit of a legend around here. We use him as the object lesson of why its bad.

Re:First Amendment covers ads?

[techno-vampire]

Meanwhile my snail-mail box will continue to overflow with junk mail everyday? Something is amiss.

The people sending that junk mail pay to have it designed, pay to have it printed, pay to have it sent through the mail. In fact, if there weren't any junk mail, first class postage rates would be higher. This is the exact opposite of the spammer who does their best to make sure other people pay for the advertisements they send out. This is why junk mail is legal and spam isn't.

Re:First Amendment covers ads?

[cgenman]

Other restricted forms of mass speech: Auto phone dialers. Littering floors with fliers. Disturbing the peace. Anything that would leave paper stains. Demonstrations without a permit. Unwanted speech in a private area. Calling to the do-not-call registry. Sending penis enlargement messages to ten year olds. Forging return addresses.

I'm usually a first amendment defender. But in this case, if the spammer wants societal protection from reprisals, they need to behave in a civilized fashion.

Re:First Amendment covers ads?

[WaltBusterkeys]

The First Amendment doesn't require that the government force catalog companies to allow you to opt-out. Rather, the First Amendment allows the government to do that.

The First Amendment is only a restriction on government power. It does not create any responsibilities on private citizens. The government may regulate postal junk mail, but there is no law regulating postal junk mail until the government writes one. Same for electronic spam: The First Amendment (probably) allows the government to regulate electronic spam, but there is no law about it until the government writes one.

As it happens, you can opt-out of postal mailings and the government will enforce your rights to do so. To get off a lot of junk mail lists, go here Or you can remove your name some of the lists that become junk mail lists for a fee.

Remember, the First Amendment is a restriction on government not on individual actors. To use the cliche example, the First Amendment doesn't make it illegal to yell "fire" in a crowded theater. Instead, the First Amendment has been interpreted to mean that a state legislature is allowed to write a law making it illegal to yell "fire" in a crowded theater.

Re:First Amendment covers ads?

[Anonymous Coward]

What is, or should be, illegal, is sending it to the private e-mail accounts of people who don't want it, at the expense of their service providers.

The spammers pay for their bandwidth, do you want to go down the road of ISPs filtering information on their networks?

If that action is covered by free speech, then I should be able to throw a brick through your front window, step inside, and start hawking my wares to your family during your dinner hour. "Hey, just exercising my right to free speech!" The disturbing thing here is that any U.S. court would even entertain such a patently ridiculous argument.

Since when is the internet your own private area? The internet is public, if you don't like what you see don't go there.

Re:First Amendment covers ads?

[ewanm89]

Until they start locking up the directors of capital-one and other similar companies (that do snail mail spam), what right do they have to lock up email spammers? I hate spam as much as the next person, but it is no different.

Re:First Amendment covers ads?

[Anonymous Coward]

Got rope? In my opinion anyone that does this should be strung up like a pedophile. Next they'll be claiming it's a disease and can't be helped. FU spammers.

Re:First Amendment covers ads?

[Torvaun]

The difference is that you know who's sending junk mail. If people send junk mail, and put a false return address on the envelope, it's mail fraud, and the penalties for this many counts of mail fraud would be way worse than just 9 years in prison. If I want to send out thousands of e-mails from my e-mail address, that's not against the law, as I understand it.

Re:First Amendment covers ads?

[nog_lorp]

Well, the US government doesn't get a fee every time someone sends an email. Thinks that generate revenue for the government get a little leeway :D.

Re:First Amendment covers ads?

[dgatwood]

Yeah. The source is the semester of communications law and ethics I took in college. I'm a little fuzzy, though, and I'll willingly admit having to Google a bit to confirm the details before posting. The Wikipedia entry is pretty sparse on the subject. I'd kill for it to go into relevant case law on the various parts of the test and cite precedents where different things were and were not shown as protected.

If you want further info about the subject, though, google "time, place, and manner restrictions". You should be able to find a lot of info on the subject, then judge for yourself whether the precedents would lean in favor of the spammer or the public welfare. I have my opinion, and my GP post is just that--my opinion. :-)

Re:First Amendment covers ads?

[DeadChobi]

Actually the US Post Office's fee goes exclusively toward paying for the USPS. This is something Ben Franklin came up with, that the post office should be entirely self-sufficient as a service.

Re:First Amendment covers ads?

[DeadChobi]

But inbox space is not public. I don't appreciate someone effectively stuffing my email inbox with messages that I didn't ask for and have no way of preventing. Would you appreciate someone stuffing a roll of newsprint with gibberish and porn printed all over it in your mailbox every day?

Re:First Amendment covers ads?

[capologist]

No one has ever said that being free to say something means that you shouldn't be held to account if what you said caused damage. The issue isn't what he said, but how he said it. The statute is content-neutral. (From TFA: "it prohibits anonymous unsolicited bulk e-mails including those containing political, religious or other speech.")

The First Amendment doesn't protect broadcasting through a loud public address system in a residential neighborhood at 3:00 in the morning, it doesn't protect hacking into somebody's cable to transmit your own content instead of the content transmitted by the cable company, it doesn't protect spray painting your message on somebody else's property, it doesn't protect stalking somebody and continually shouting your message in their ear, it doesn't protect hacking somebody's website to replace their front page with your own, and I don't think it protects unsolicited bulk e-mail either. These are all antisocial activities, regardless of the content.

Re:First Amendment covers ads?

[ewanm89]

That depends on very careful wording of the law. If it's worded as unsolicited electronic communications, then it won't matter what address is in the headers.

Re:First Amendment covers ads?

[ewanm89]

It'll also depend on definitions possibly given at the beginning of the document.

Re:First Amendment covers ads?

[ewanm89]

Accept it costs more than that. It costs the you the shredder (if it has name and address on it) it costs the extra load that need to be taking in the rubbish bins (garbage/trash cans to you Americans) and disposing of it, ore it costs the extra fee for recycling it to the government...

Re:First Amendment covers ads?

[hairyfeet]

Because many of the guys here are network admins and have seen the real costs associated with spam? I know we have probably had way too many analogies here already,but what the hell,let me throw in my own-

A few years back I took a temp job for a law office with a network from hell(actually set up by a gamer,shudder!) and everyday I would walk to lunch. As I would walk to lunch there would be this guy on the street corner saying we would all go to hell if we didn't repent,and reading furiously passages out of his bible. Even though I am an agnostic I have absolutely no problem with him being there and would even put money in his cup,simply because he never touched anyone and I supported his right to speak his beliefs. What I would NOT have supported is him walking into my backroom every morning,plopping his ass down in fron of my monitor and FORCING me to deal with his crap every day.

Because in a very real sense that is EXACTLY what the spammer does. While I have never had the misfortune to be the email admin,I have known enough guys who were,and have seen first hand how much time they waste every damned day on garbage that flows like a sewer into their email servers. That is time they could be helping there fellow employees with problems,doing backups and upgrades,etc. Not to mention the bandwidth and the amount of money his employers spend on dealing with this junk. I have no problem with the spammer advertising his wares.I DO have a problem when he forces us all into unwanted expenses for the sake of his easy profits. And NO you can't say they "pay for their bandwidth" as most spam comes from botnets designed to force someone ELSE to fit the bill. That is why spam is so damned popular with scumbags. Somebody else gets the bills and the spammer gets the checks.

So while I am all for free speech I'm afraid that just like the *.A.A doesn't have the "right" to permanent profits neither IMO do spammers have the "right" to force their crap on me. But that is my 02c and you are free to ignore it. You also don't have to worry about me stuffing it in your mailbox if you do either,LOL!

Re:First Amendment covers ads?

[falconwolf]

It seems strange to me that so many people on slashdot (and more generally on the internet at large) seem so gung ho free speech, yet at the same time are ready to burn spammers at the stake.

I am sorry for your inconvenience, but I think free speech is a little bit more important than that.

While Free Speech is important commercial speech is not nearly as important. In Kasky v. Nike California's Supreme Court set up a 3 part test on "when a court must decide whether particular speech may be subjected to laws aimed at preventing false advertising or other forms of commercial deception. . . ." While the majority voted this way some Justices rejected it.

Findlaw has much more on Commercial speech.

Falcon

Re:First Amendment covers ads?

[1u3hr]

On another note, it's worrying that many of my fellow Americans have no problems with someone being put in prison for nine years for something like spamming. One year ok, two years maybe, but nine years?

I'm not an American, but I'd be happy if he was. But that was never going to happen. Sentenced to nine years, perhaps, how many years inside a jail cell? I don't think he's been in jail at all while appealing -- the fucker has made millions from his spamming, he can afford any bail they set. Even if he loses his appeal, he'd be unlucky to serve more than three years, I think.

But on the general issue, if spammers faced a real chance of say two years' jail, that would be a deterrent. But this guy is about the only one convicted in the last decade, and he has avoided doing time (apparently). Spammers have nothing to fear. The government does zip to enforce the multiple laws these guys break, because each offence is minuscule. Ignoring the fact that a small offence repeated millions of times does add up to a major offence against society, if not in law.

Re:First Amendment covers ads?

[falconwolf]

The mailman is just as much a spammer when he delivers junkmail. Do you charge him for using your mailbox ?

The mailman is just a deliverer, not a spammer. The spammer is the one that sends the junkmail, which I call spam.

Spam is annoying, but really what are your costs ? .. your time to delete the email ? ..

Keep going, spam doesn't just cost the tyme it takes to delete it. It also cost bandwidth and the hardware costs of the ISP for mail servers both of which mean more money is needed to deliver services.

Falcon

Re:First Amendment covers ads?

[arbitraryaardvark]

http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater
or see my earlier discussion re fire.
You are right about the state action aspect, and you provided a useful link, so I'm just picking nits, but it's a pet peeve.
One of these days I'm going to write a play called "Fire!"

Re:First Amendment covers ads?

[plantman-the-womb-st]

Yes actually, it protects everyone of those things. However, it does not remove the consequences if what you've choosen to do violates ordinances and laws.

Re:First Amendment covers ads?

[MorePower]

Well, that's a flat out stupid definition of freedom. By that definition the monks in Tibet are free to form their own independent nation, they just have to accept the consequences that the Chinese military will come and beat the crap out of them.

We already have the words "physically possible" to describe things you can do but may (or may not) have governmental consequences. If you're going to use the word "freedom" it should mean something more.

Re:First Amendment covers ads?

[Hal_Porter]

The appeal definitely won't go anywhere.

Meanwhile my snail-mail box will continue to be overloaded with junk mail everyday? Something is amiss.

On another note, I have difficulty with the fact that many my fellow Americans don't have a problem with giving the government the power to put someone in prison for nine years for something like spamming. One year ok, two years maybe, but nine years? Yeah, and it's the often the same people who will complain about penalties for copyright infringement. I think they are essentially lobbying for their right to use their internet connection purely for piracy (which should be totally legal) and not at all for spam (spammers should be locked up forever).

Dangerous people really, they want to have a total right to do what they want no matter how antisocial, but have draconian penalties for anyone who does anything that inconveniences them in slightest. And let's face it, people in the music industry would be much more inconvenienced if piracy becomes legal than the average user is by spam. Just install Bayesian filtering software in your email client to block spam. In Thunderbird with an otherwise unfiltered account I maybe one piece of spam gets through the filter per week. Or just use gmail - I get maybe one piece of spam per month on my gmail account.

Re:First Amendment covers ads?

[WaltBusterkeys]

One of these days I'm going to write a play called "Fire!"

That'd be one hot ticket.

Re:First Amendment covers ads?

[KDR_11k]

Meh, this is covered about as much as using a hammer and some letters to ram your message into someone's forehead. It's a damaging act, that it's also speech is secondary to the damage it does IMO.

Re:First Amendment covers ads?

[mastershake_phd]

Would you appreciate someone stuffing a roll of newsprint with gibberish and porn printed all over it in your mailbox every day? You've never gotten a free newspaper thrown in your driveway or stuffed in your paper tube? Around here a couple years ago someone was going around throwing racist pamphlets on peoples front yards. In a diverse neighborhood in a moderately sized city no less. Stupid and morally wrong probably, but I believe that sort of thing is legal and probably should be. Of course in the case of the free newspaper, you can call up and opt-out, same idea as the CAN-SPAM act.

Re:First Amendment covers ads?

[KDR_11k]

The spammers use botnets, they use other people's bandwidth.

Re:First Amendment covers ads?

[Trailer Trash]

No, I'm not free to do this - there's a civil liability in addition to the criminal action. That has nothing to do with freedom. Freedom means that it's not a criminal action. As someone else mentioned, your definition of freedom would make anyplace in the world "free".

There may be liabilities to my speech (i.e. if I tell the boss to go to hell I might lose my job), but the government won't be knocking down my door.

Re:First Amendment covers ads?

[dodobh]

Spam isn't about free speech. You want freedom of speech, setup a website and speak there.

Re:First Amendment covers ads?

[LMariachi]

That's a pretty dumb assertion, and one seen far too often around here. "Congress [and per the 14th Amendment, States] shall make no law..." means there aren't any legitimate ordinances and laws that would result in such consequences.

Of course, courts have found reasonable (and sometimes unreasonable) exceptions -- yelling fire in a theater and such -- but what you're saying would make the Bill of Rights entirely meaningless. "You have the freedom to say whatever you want, but the government can punish you for it" is exactly the same as "You don't have the freedom to say whatever you want."

Re:First Amendment covers ads?

[rohan972]

If you can make ordinances and laws to stop it, it isn't constitutionally protected. The content of the message may be, but vandalism, stalking and website defacement are not protected rights under the 1st (or any other) amendment.

Re:First Amendment covers ads?

[Anonymous Coward]

Out in the real world, we don't call what you seem to advocate "free speech". We call it "breaking and entering".

How would you like if Jehovas Witness'es decided to spread their gospel in your living room? Is "free speech" still more important than that? How about if it was the KKK? How about a group telling you how to get a bigger p*n*s and bigger b**bs?

Noone is attacking a business' right to advertise on their own website on their own webserver. Noone is attacking their right to buy advertising space on other peoples servers. But if you want to use MY internet connection, MY mail-server, and MY inbox, it's no more "free speech" than if I want to use YOUR living room.

Re:First Amendment covers ads?

[plantman-the-womb-st]

There may be liabilities to my speech (i.e. if I tell the boss to go to hell I might lose my job), but the government won't be knocking down my door. Exactly.

Re:First Amendment covers ads?

[YttriumOxide]

Actually, it applies to all people on US territory, not just citizens.

It's a bit off topic, but could you give me a good link or two that spells this out clearly?

I'd also like to know where I can get information about addressing what I believe to be a free speech rights violation as a non-US citizen that was there for a business trip not so long ago (I was threatened with arrest by a police officer for simply having a particular discussion (not loudly, not disturbing the peace, and not inciting violence - just a discussion). As it turned out, I was NOT arrested and there were no consequences other than the immediate end of the discussion I was having, and so I have no interest in pursuing it further, but I want to be prepared should a similar thing ever happen again and it not turn out okay)

Re:First Amendment covers ads?

[Registered Coward v2]

Jere's a link:

http://www.pbs.org/newshour/forum/october01/civil2.html

Obviously, legal minds differ on the exact extent of protection, this context was with respect to excluding non-citizens from entry.

Re:First Amendment covers ads?

[YttriumOxide]

Hmmm... reading that, it all looks fairly "flakey" really. Not so good :(

Re:First Amendment covers ads?

[tinkerghost]

Yeah, and it's the often the same people who will complain about penalties for copyright infringement.

Um, why is the statutory penalty for copying a single song $150,000, while the penalty for stealing the song from the store is $1000?.
Why is the potential criminal penalty for copying that song up to 10 years in jail, while rape is 6-10?
Do we as a society agree that copying something is equivalent to rape or more severe than theft? In general we do not, and thus we find that the penalties for copyright infringement are not equitable to the severity of the crime.

Re:SLASHDOT SUX0RZ

[Anonymous Coward]

Come on guys, you are abridging the previous AC's freedom of speech by modding him Troll! Who cares if what he is doing has a direct, negative effect on the people who use this service! His rights to free speech are more important than your rights!

Unintentional Humor???

[Kiralan]

Does anyone else find it funny/ironic that the one of the sidebar 'Related Links' is to '* Compare prices on Spam Software' ??? K

Re:Unintentional Humor???

[Anonymous Coward]

And it takes you to SourceForge.

Now, where are the Viagra and penis enlarger ads?

Re:Unintentional Humor???

[moderatorrater]

Great, you just opened the door for all the smug replies about how people haven't seen ads in years because of adblock plus. They'll probably close their eyes while they're typing it, too.

Re:Unintentional Humor???

[Digi-John]

"Oh, you run Adblock Plus? Good for youuuu!" *thumbs up*
*eyes closed* "Thaaaanks!"

You see what you did with your gay little browser?

I'm afraid Slashdot has disappeared completely... up its own asshole.

Re:Unintentional Humor???

[falconwolf]

Great, you just opened the door for all the smug replies about how people haven't seen ads in years because of adblock plus.

Better than ad blocking software is using a Hosts file. Hosts files are great for blocking unwanted parasitic websites.

Falcon

There is no such thing as Free Speech

[Anonymous Coward]

If there was, then libel and slander would not be a problem. Freedom has to be married with control. If you lose one, you lose the other. So a balance must be made. It's not free speech, but a level of free speech. Just where that level lays is where the justices have to decide.

Doesn't matter if it's ads.

[jcr]

This isn't a first amendment issue, it's a property rights issue. The spammer's got a right to say whatever he wants to say, but that right doesn't include a right to use other people's property to do so.

Basically, he got sent up the river for a hell of a lot of instances of extremely petty theft, which is as it should be. Let the fucker rot.

-jcr

Re:Doesn't matter if it's ads.

[sootman]

I wouldn't mind getting spam if every piece of it came from a company's own servers and with a legitimate return address. But when spammers a) steal resources (via botnets and trojaned machines) to send their mail and then b) they forge the From: header so you can't possibly respond, I think it's pretty clear from part B that they know that what they're doing--part A--is wrong.

Note that I said I wouldn't *mind* spam in these conditions. I'd be even happier to receive no ads, period, but as long as they have to pay their own way and not hide their identity then I figure it's not AS bad as what they do now. I *would* accept an inbox full of junk mail if it meant that acres of trees didn't have to die to keep my physical mailbox full of junk. I don't disagree with people who say "you have no right to be in my inbox, period"--I just don't personally feel as strongly. Marketing assholes will be marketing assholes until they're all exterminated; so we may as well give them a less-wasteful outlet for their bullshit. :-)

Re:Doesn't matter if it's ads.

[borkus]

Exactly. Freedom of speech allows me to print a pamphlet on some cause of my choosing. I can hand my pamphlet out to people or go door to door. However, the first amendment does not allow me to break other laws in distributing them. I cannot break into your house to give you pamphlets. Nor can I just leave a pile on a ground to become litter.

Re:Doesn't matter if it's ads.

[Reziac]

Whether it's a First Amendment issue is actually a good question, but IMO it isn't really all that hard to distinguish whether that applies:

Someone sending spam *entirely* with their own equipment (NOT using botnets, hacked servers, open relays, etc.) is within their rights. They may be a PITA but so are streetcorner preachers hollering over the town square -- the venue is different but the effect is the same: annoying, but still "free speech", as free to the spammer or preacher as it is to everyone else. However, anyone else is also within their rights to block said spam, much as the streetcorner preacher can't prevent you from wearing earplugs.

However, the moment the spammer illicitly uses someone else's equipment, they are in the wrong and First Amendment protection no longer applies, since they commited variously computer-trespass and/or theft of services. Likewise, the streetcorner preacher is not allowed to co-opt your front porch and use it to harangue passersby.

Re:Doesn't matter if it's ads.

[calebt3]

The downside (for the spammer) is that the moment they move to their own equipment, filtering them becomes infinitely simpler.

Re:Doesn't matter if it's ads.

[servognome]

Exactly. Freedom of speech allows me to print a pamphlet on some cause of my choosing. I can hand my pamphlet out to people or go door to door. However, the first amendment does not allow me to break other laws in distributing them. I cannot break into your house to give you pamphlets. Nor can I just leave a pile on a ground to become litter.

But it does let you place it on people's car windshield, mailbox, and front doors. Spammers aren't breaking into your account to get you information, they are placing it in a publicly accessible location where you will see it.

Re:Doesn't matter if it's ads.

[aztektum]

So it's your argument that it's your network and you should be able to control what data flows over it?

Hm, sounds like AT&T/Verizon/Comcast. I'll remember that next time net neutrality laws come up and everyone is talking about how the Internet should be unfettered by business interests.

How do you "steal" bandwidth anyway? Is that like "stealing" an mp3?

Re:Doesn't matter if it's ads.

[Deanalator]

Depends on how well he covered his ass with a EULA :-)

Re:Doesn't matter if it's ads.

[falconwolf]

Someone sending spam *entirely* with their own equipment (NOT using botnets, hacked servers, open relays, etc.) is within their rights. They may be a PITA but so are streetcorner preachers hollering over the town square

No, they are compleatly different. What a spammer does is commercial speech whereas the preacher is using religious speech, and freedom of religion is another of the rights in the First Amendment.

Falcon

Re:Doesn't matter if it's ads.

[falconwolf]

I wouldn't mind getting spam if every piece of it came from a company's own servers and with a legitimate return address.

You left out getting paid. I could use a dollar for every spam message I get. You also left out the added expenses to the ISP of handling the spam. I don't know if it's true but I heard that something like half of the bandwidth, which cost money, is used by spam. ISPs pay for the bandwidth used then have to pay for the mail servers and storage.

Falcon

Re:Doesn't matter if it's ads.

[jcr]

How do you "steal" bandwidth anyway?

Look up "theft of services" in a legal dictionary.

-jcr

Re:Doesn't matter if it's ads.

[DiEx-15]

The problem here for the spammer is - Spam can't be considered protected under the First Amendment. The reason being is while he has the right to look like an ass clown, I have the right to just ignore it. However, as in the case of spam, I can't just walk away - it is sent to me whether I want it or not.

All I can say is that karma is a bitch. He probably is regretting all the Viagra emailers he sent right about now...

Re:Doesn't matter if it's ads.

[Reziac]

Yep. Nifty how that works out. :)

Re:Doesn't matter if it's ads.

[Reziac]

I note from the Wiki article that the Court was not unanimous on that:

"I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech." -- Clarence Thomas

And I have to agree with this, because if you can assign a 'lower value' to one type of speech, you've just set a precedent for setting a lower value on ANY type of speech. Maybe next time it'll be religious speech that is determined to have "lower value". Maybe speaking out against government activities gets a 'lower value' too.

Don't think so? Check out http://www.seditionproject.net/ for a good ol' American realworld example.

Re:Doesn't matter if it's ads.

[falconwolf]

I note from the Wiki article that the Court was not unanimous on that:

"I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech." -- Clarence Thomas

I see I should have included more links, so here goes:

• "The High Cost of Free Speech"
  "No one considered advertising or other profit-motivated communications as constitutionally protected speech until fairly recently. According to legal scholars, the phrase "commercial speech" did not even appear in any decision of any court of the United States until 1971. Freedom of speech was an individual right, protected from abridgment by the federal government (and from state and local governments after 1931)."
• "Governmental Regulation of Commercial Speech"
• "Government Regulation of Commercial Speech"
  "The Supreme Court for many years took the view that commercial speech--speech that proposes an economic transaction--was not protected by the First Amendment. The Court reasoned that the broad powers of government to regulate commerce must reasonably include the power to regulate speech concerning articles of commerce."
• "Commercial Speech"
  "In recent years, the Court's treatment of ''commercial speech'' has undergone a transformation, from total nonprotection under the First Amendment to qualified protection."
• Findlaw has more info.

Falcon

Re:Doesn't matter if it's ads.

[mpe]

The downside (for the spammer) is that the moment they move to their own equipment, filtering them becomes infinitely simpler.

That comes back to "freedom of speech". Just because you are free to say something does not imply that anyone is under any obligation to listen.

Re:Doesn't matter if it's ads.

[KDR_11k]

And they're ramming a whole bundle of them into each mailbox, stufing some so much that legitimate mail cannot enter and all that despite a big label saying "no ads".

Re:Doesn't matter if it's ads.

[asdfghjklqwertyuiop]

Someone sending spam *entirely* with their own equipment

Impossible. Sending spam necessarily involves the use of someone else's (the recipient's) mail server and usually against their will.

Re:Doesn't matter if it's ads.

[jcr]

Someone sending spam *entirely* with their own equipment (NOT using botnets, hacked servers, open relays, etc.) is within their rights.

Once it gets to my router, they're not using their own equipment.

-jcr

Re:Doesn't matter if it's ads.

[Locklin]

If that mail server is configured to accept mail from anywhere, via a published standard, then it is not "against the owner's will" to send mail to it. A botnet *is* against the equipment owner's will.

On another note, it would be much easier to filter spam from legitimate sources.

Re:Doesn't matter if it's ads.

[LMariachi]

Your physical mailbox may be "publically accessible," does that mean it's okay to stuff a load of dogshit in it?

Re:Doesn't matter if it's ads.

[asdfghjklqwertyuiop]

Most mail servers are not configured to accept mail from anywhere. They use content filters, black/white/grey lists, and all kinds of other things plus in some cases statements in the SMTP banner that flat out states that they don't want spam. Obviously it is the will of practically all mail server owners that they don't want spam. Yet spammers do all kinds of things to evade these will enforcement techniques and therefore are knowingly and intentionally using the mail server against the will of its owner.

Re:Doesn't matter if it's ads.

[Reziac]

Exactly. At that point, you're free to block it if you wish, and if the spammer doesn't like it, he can buy his own router and pay for his own upstream access. If that makes spamming unprofitable -- oh well!!

Re:Doesn't matter if it's ads.

[sootman]

I don't know if it's true but I heard that something like half of the bandwidth, which cost money, is used by spam. ISPs pay for the bandwidth used then have to pay for the mail servers and storage.

True, but if spam (miraculously) went "legit" then there would be a whole lot less of it. The reason there is so much now is because it comes from machines that the spammers aren't paying for in the first place. If a real c@n4dian ph@rm@cy called an ISP and said "I'd like to send out 20,000,000 emails this week, how much will that cost?" they'd be given a quote comparable to what streaming video providers pay. And if from" headers weren't forged, filtering would get a bunch easier and could be implemented at the server and that again would lower the costs of the network providers

Who decides what's "dangerous"

[plasmacutter]

"I know that the first amendment doesn't cover dangerous communication, or communication about illegal acts"

Who decides what is "dangerous"?

I suppose hardliners like oreilly would call any communication by "liberaldemocrats"(one word) or "dirty towel heads" dangerous.

The RIAA and MPAA call any sharing or participation in culture dangerous.

As for communication about illegal activities.. I guess that joke I made in my guild chat about pipe bombs recently qualifies me for 24 hour wiretapping, arrest, and a couple years in gitmo.

Face it, the rulings revoking the first amendment for "dangerous communication" or "communication about illegal acts" have revoked the first amendment period

Re:Who decides what's "dangerous"

[SparkleMotion88]

I totally agree with this. Once there is a chink in the armor of the first amendment, then that weakness can be exploited to restrict any sort of expression. Personally, I think all expression should be protected, including slander, false advertising, and incitement. We shouldn't have laws that restrict our freedom just because people will believe everything that they hear. Maybe if we didn't have these sorts of laws, then people would be a little more critical about what they choose to believe.

Re:Who decides what's "dangerous"

[himurabattousai]

Slander and libel are a direct attack on another person; it is not the words that are dangerous, it is how they are used. My baseball bat poses no danger to a person until I swing it at his face. Slander or libel only occur if what I say or print is untrue. If it is untrue, I am the aggressor. If it is not untrue, then what I say or print is a pro-active sort of self-defense against the dishonesty or aggression initiated byt the person that I am calling out.

False advertising is not a first amendment issue. It is a fraud issue. Companies that recklessly advertise what they cannot or will not deliver commit fraud. Advertising is only false advertising at the point in which what is promised is not delivered. Up until then, there is no problem, and the punishment comes after the fraud, not the advertising.

Incitement is generally not protected because of the immediate danger it poses to a very specific individual or group of individuals that are in close proximity to the person trying to start the violence. As the danger becomes less immediate and the target becomes less defined, the less likely (in theory) an incitement is to occur. For an example, compare death threats (jail time) and advocating deportation for illegal immigrants (scorn and ridicule); the likely-hood of me being able to kill one person is much greater than that of me being able to kick ten or so million somewhat random people out of the United States.

The biggest problem with deciding where unpopular ends and genuinely, immediately dangerous begins is hard to pin down. In all but the most painfully obvious cases, it's better to over-protect than over-prosecute.

The First Amendment doesn't cover ads

[Anonymous Coward]

The SCUSA has ruled in the past that commercial speech is not covered by the First Amendment. If he was selling something, he's screwed.

Two Words

[Noodles]

Death Penalty

Re:Two Words

[Anonymous Coward]

You can kill anyone you like. You're just too much of a pussy to get your hands dirty so you whine to the state. "Pretty please, kill your own citizens, they annoy me."

You're a piece of shit.

Re:Two Words

[Anonymous Coward]

Absolutely. And instead of his parting communications with loved ones being the final content his mind enjoys, instead he should have to sit through forty-five minutes of his own spam messages, read to him, and on a widescreen, before lights out.

Re:Two Words

[shentino]

Maybe if it took place as a fulfillment of the http://en.wikipedia.com/Felony Murder if someone wound up killed over it.

Let's say a spammer was selling ads for a potentially dangerous brand of a viagra work-alike. And, the company that was sleazy enough to hire a spammer to push it's product was also sleazy enough to skip clinical trials and other safeguards, and now they are selling a deadly poison.

Let's also say that Joe Sixpack was desperate enough to buy the stuff.

Now, he dies.

First of all, the company that sold the drug is almost certainly liable for wrongful death.

But here's the juicy part.

The spammer, and most likely, the botnet operator, have both committed theft, probably on a felony scale, of thousands of computer systems, and as a consequence of their actions, someone died.

Any judge would hopefully consider that selling your services to the highest bidder is not quite in line with being prudent, which includes selling ads for dangerous products.

In this case, I would support the death penalty according to the Felony Murder rule, which elevates the death of anyone not involved in the commission of a felony, anywhere from tortious wrongful death to manslaughter, to murder.

Headline not quite accurate

[swordgeek]

Here's an excerpt from the article:

"Yesterday, however, the justices agreed to hear arguments on whether Jaynes could challenge the anti-spam law as unconstitutional in general, even if it was constitutionally applied to him." (Emphasis mine)

So that means that he gets to present arguments that would support his ability to appeal on constitutionality. Pretty circuitous.

Also, I think it's great. Spam is clearly theft of services, and the sooner that gets legally solidified, the sooner the dirtbag spammers will quit being able to whinge about free speech.

Re:Headline not quite accurate

[jd]

In the UK, if a person file and loses an appeal in which the State counter-claims that the original sentance was unduly lenient, the appeal court judges can increase the sentance. This is one of the very, very, very few cases in which such a law could be considered justified. Unfortunately, printing out a representative sample of his spam e-mails and making a paper mache coffin out of it to decorate his prison cell might run counter to the cruel and unusual punishment clause.

Re:Headline not quite accurate

[Hatta]

That is pretty strange. Since he's presenting arguments anyway, why not just let him present arguments that the law is unconstitutional? Cut out the middle step.

And I'm wondering, what kind of arguments can to disallow someone from appealing the constitutionality of a law? If the constitutionality of a law is in question, then disallowing someone from appealing leads to the possibility of someone being held unconstitutionally but having no recourse. On the other hand, if the constitutionality of a law is certain, why not let the guy argue and lose? As I said, you're hearing arguments anyway, so you're not wasting any time or resources.

Re:Headline not quite accurate

[justinlee37]

So that means that he gets to present arguments that would support his ability to appeal on constitutionality. Pretty circuitous.

The Supreme Court isn't required to review every case that is appealed; they can look at the previous decision and decide that there is nothing to be considered differently. In order for the Supreme Court to review a case, they must first grant what's called a "Writ of Certiorari," which requires that 4 out of 9 judges deem it worthy of appeal.

Constitutional right to spam?

[Anonymous Coward]

http://www.spammimic.com/decode.shtml

Dear Friend ; Thank-you for your interest in our publication
. If you no longer wish to receive our publications
simply reply with a Subject: of "REMOVE" and you will
immediately be removed from our club ! This mail is
being sent in compliance with Senate bill 1627 ; Title
3 ; Section 304 ! This is NOT unsolicited bulk mail
. Why work for somebody else when you can become rich
inside 85 days . Have you ever noticed nobody is getting
any younger & more people than ever are surfing the
web ! Well, now is your chance to capitalize on this
. WE will help YOU increase customer response by 140%
& deliver goods right to the customer's doorstep !
The best thing about our system is that it is absolutely
risk free for you . But don't believe us . Ms Ames
of Virginia tried us and says "I was skeptical but
it worked for me" ! We are a BBB member in good standing
. If not for you then for your LOVED ONES - act now
. Sign up a friend and you'll get a discount of 60%
. Cheers ! Dear Friend , You made the right decision
when you signed up for our mailing list . We will comply
with all removal requests . This mail is being sent
in compliance with Senate bill 1621 , Title 4 ; Section
307 . THIS IS NOT A GET RICH SCHEME ! Why work for
somebody else when you can become rich inside 60 weeks
! Have you ever noticed nobody is getting any younger
and nobody is getting any younger . Well, now is your
chance to capitalize on this ! WE will help YOU increase
customer response by 160% plus use credit cards on
your website . You are guaranteed to succeed because
we take all the risk . But don't believe us ! Mr Anderson
who resides in Maryland tried us and says "My only
problem now is where to park all my cars" . We are
licensed to operate in all states . If not for you
then for your loved ones - act now ! Sign up a friend
and you'll get a discount of 40% . Thank-you for your
serious consideration of our offer ! Dear Friend ,
Thank-you for your interest in our briefing . We will
comply with all removal requests . This mail is being
sent in compliance with Senate bill 1623 , Title 1
; Section 307 . Do NOT confuse us with Internet scam
artists . Why work for somebody else when you can become
rich within 23 days ! Have you ever noticed how long
the line-ups are at bank machines plus nobody is getting
any younger . Well, now is your chance to capitalize
on this . We will help you deliver goods right to the
customer's doorstep plus decrease perceived waiting
time by 150% ! The best thing about our system is that
it is absolutely risk free for you ! But don't believe
us . Mrs Simpson of Illinois tried us and says "Now
I'm rich, Rich, RICH" ! We are licensed to operate
in all states ! We IMPLORE you - act now ! Sign up
a friend and your friend will be rich too . Thanks
.

Linux is a pile of shit anyway

[Anonymous Coward]

Why go to court over that in the first place? Bottom feeders...

MOD PARENT UP

[jdunn14]

I wish I had mod points right now. The point is not free speech. It is the use of other people's resources. You are allowed to say whatever you want on the town square, but the tax payers don't have to buy you a megaphone.

Re:MOD PARENT UP

[icebike]

Mod GrandParent up.

Why can't I horde my mod points for things that need it?

Re:SLASHDOT SUX0RZ

[Utini420]

Actually, it is.

I hate SPAM as much as anyone else. And I would love to see some actual laws in place to cover malware of various types. But how does one define SPAM, in a hard-core, definitive way? Sure, we all know it when we see it, and this guy is clearly beyond the pale. But any law sufficient to nail him could and would also be used on other, less clear-cut cases.

File it under defending the nazi's right to be assholes, but it really doesn't matter how much you don't want his spam. I'm not sure what direct, negative effect you are referring to, unless its the totally-not-worth-my-caring cost of transmitting or storing email. He's got a right to it, and taking his right away lessens that right for everyone.

With as many chips as our constitutional rights have endured lately, I'm inclined to defend the 1st amendment even more staunchly than usual.

First Amendment isn't relevant

[techno-vampire]

The First Amendment isn't relevant to this case and bringing it up is just an attempt to draw attention away from the facts. Jeremy Jaynes used mailing lists he'd stolen from AOL, eBay and other places for his spamming. The First Amendment doesn't give you the right to shout "FIRE!" in a crowded theater and it doesn't give you the right to use stolen addresses to direct your advertisements.

The law seems fine to me

[SparkleMotion88]

I don't think the law infringes on anybody's right to expression. The law is only related to falsifying e-mail transmission info. So if the guy bought a domain name and set up a smtp server and spammed from his domain and his server using a connection that he pays for, he wouldn't be breaking the law. It is reasonable to have laws like this to protect the defrauded service providers who were essentially duped into sending this guy's spam.

Re:The law seems fine to me

[TubeSteak]

The law is only related to falsifying e-mail transmission info. So if the guy bought a domain name and set up a smtp server and spammed from his domain and his server using a connection that he pays for, he wouldn't be breaking the law. Part of free speech is the right to adopt a pseudonym and 'publish' anonymously.

He could argue that abridging the right to publish anonymously is unconstitutional, even if the law itself was applied in a legal manner.

Re:The law seems fine to me

[Reziac]

And he might be correct -- so long as he only uses his OWN equipment and a legitimate internet connection which he has lawful permission to use (even if that's an anonymous, open-to-all site like a public library). But the moment he *steals* someone else's bandwidth or CPU cycles, he should lose that protection.

BTW I've received anonymous spam that promoted unpopular political viewpoints; imagine if this were, say, China and such spam might be your only way of learning about western democracy.

Re:The law seems fine to me

[Anonymous Coward]

Heh, every time I hear that kind of argument, I imagine a whole bunch of chinese huddled behind their keyboards, desperately searching for information on this western democracy thing.

Commercial Speech

[StormReaver]

According to http://www.lawpublish.com/amend1.html, commercial speech is protected by the 1st amendment, but to a lesser degree than non-commercial speech:

"In Central Hudson, the Supreme Court set out the important four-part test for assessing government restrictions on commercial speech:

'[First] . . . [the commercial speech] at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.'"

Almost all spammers will fail the first test, including the waste of skin from the article. There is no such thing as a legitimate spammer.

Re:Commercial Speech

[jd]

Ok, let's see if you're right.

• must concern lawful activity: A lot of the "products" advertised don't exist. I would consider this unlawful, but then I see everything else advertised on TV, radio, billboards, McDonald's windows...
• and not be misleading: See above, and add in any movie trailer that uses the words "exciting", "dramatic" or "thrilling".

By this standard, virtually all commercial speech should be prohibited. Admittedly, this might lead to a gigantic leap in the quality of products and services, a massive reclamation of land, bandwidth and other resources, and the undoing of years of brainwashing. The inprisonment of the entire advertising sector would also slash pollution levels, accelerate web speeds by three orders of magnitude, and be directly responsible for bringing civilization to whole new heights of wisdom and enlightenment.

Re:Commercial Speech

[Tuoqui]

As someone with a 12 inch cock I have to say getting spam saying I require a penis enlargement is misleading.

Spam/advertizing should NOT be protected by th 1st

[rts008]

So, Jayne wants the ability to invade my privacy/space to make money protected? What about my rights to not be invaded with this.

I don't see this as any different than him having the ability to legally breaking into my property to hand me an advert. According to his thinking, I don't have to read the advert, but he has a right to force his way into my property to give me the advert while trying to disguise himself, and lying about who/what he is to get past any defenses.

Shouldn't I have to invite him in?

*ding dong*
Me: 'who is it?'
Jayne: 'Avon"
Me: 'Who?"
Jayne: "Telegram"
Me: "WTF? Who did you say?"
Jayne: "Uhm...Land Shark?" (my apologies to SNL)

In my ideal world, the judge would just say: "Bailiff, take this scumbag out by the dumpster, kneecap him, gut shoot him, then feed him his own testicles... RIGHT NOW!"

First Amendment?

[LocutusMIT]

Let's see. Hundreds of emails each day, with no way to make them stop? Sounds an awful lot like harassment. I don't think the First Amendment covers that.

Perhaps he should be tried for several hundred thousand counts of harassment if he's successful here.

Re:First Amendment?

[calebt3]

That's what I was wondering, too. Maybe you need to ask them to stop in order for it to be considered harassment. Can one get financial compensation from a harassment lawsuit?

Re:First Amendment?

[Kalriath]

Change that to several million. Don't forget the overseas people!

"Sir, you are charged with 4,705,102 counts of harassment. How do you plead?"

In Soviet Russia...

[InSovietRussiaTroll]

The party spams you!

You know whos being left out here

[Gat0r30y]

The poor folks selling P3n1s enlargements. I mean, how are these poor folks going to get by without JJ to send SPAMmy goodness to all of us? Please, wont someone think of the discount V14gr4 suppliers! Their children, they will starve!

Re:Spam/advertizing should NOT be protected by th

[Eco-Mono]

In my ideal world, the judge would just say: "Bailiff, take this scumbag out by the dumpster, kneecap him, gut shoot him, then feed him his own testicles... RIGHT NOW!"

To be fair though, this is the same ideal world which got a "does not play well with others" on its second grade report card.

Hong Kong on business?

[Anonymous Coward]

The lawyer claimed he was coming back to the US from a business trip to Hong Kong. Assuming this lawyer has other scamming scumbags for clients, you have to wonder if the prostitutes were females capable of consent.

Re:Hong Kong on business?

[Anonymous Coward]

Assuming this lawyer has other scamming scumbags for clients, you have to wonder if the prostitutes were females capable of consent.

Most likely not. Lawyers (and politicians) are notorious for being paedophile child abusers.

His First Amendment rights end...

[pyrr]

...where my SMTP server and email accounts begin. The Do Not Call registry, as well as the laws banning unsolicited faxes and telemarketing calls to mobile phones also operate on this principle.

On a related note, I wish those principles applied to my snail mailbox, I'm tired of dealing with all the junk mail. I'm about ready to go truly paperless and just take the darn thing down, because the postal service is only concerned about the money they make from bulk mailers and not whether I want that trash, which I have to dispose of. It takes far more effort and potential expense to deal with trash mail than spam, even. It's of course the USPS' choice, since they own the system and think it's fine and dandy. I treat it the same way, though, I don't even CONSIDER unsolicited commercial mail from anyone, it goes right into the trash. I don't even open them to sort out recyclable content.

Re:His First Amendment rights end...

[Registered Coward v2]

...where my SMTP server and email accounts begin. The Do Not Call registry, as well as the laws banning unsolicited faxes and telemarketing calls to mobile phones also operate on this principle.

That's the key - snail mail senders are paying the cost of sending the email; here you are covering its cost.

On a related note, I wish those principles applied to my snail mailbox, I'm tired of dealing with all the junk mail. I'm about ready to go truly paperless and just take the darn thing down, because the postal service is only concerned about the money they make from bulk mailers and not whether I want that trash, which I have to dispose of. It takes far more effort and potential expense to deal with trash mail than spam, even. It's of course the USPS' choice, since they own the system and think it's fine and dandy. I treat it the same way, though, I don't even CONSIDER unsolicited commercial mail from anyone, it goes right into the trash. I don't even open them to sort out recyclable content.

The USPS has a form - 1500 Application for Listing and / or Prohibitory Order - that allows you to stop being sent pornographic material. You need to fill it out for each sender; what is explicit or pornographic is your call. So, if you find coupon mailers pornographic or explicit, well, to each his own.

Re:His First Amendment rights end...

[calebt3]

No more coupons for those nasty chicken breasts!

not that it relates at all to the discussion

[ClioCJS]

But I've always thought the shouting fire in a theatre was a really poor example...

I wrote about it on my blog here (so I wont repeat myself), but there are some insightful comments that re-state my opinion better than I did originally.

In short, I wish people would use another example.

Re:SLASHDOT SUX0RZ

[hedwards]

It's not that hard to define. We could have effective legislation and largely ignore authorization.

Emails that use forged information are not that difficult to identify, and sanctioning individuals and businesses that do it would have no effect on genuine exercises of free speech.

Emails that lack a meaningful way of opting out, disregard instructions to drop the address or mislead the reader about who sent it and why, are likewise not protected free speech.

It's just not as nebulous as a lot of people would have you believe. If they honor opt out requests that would be enough to make a serious dent in the problem. Without other measures. The problem is that spammers don't have a way of being contacted and don't respect the wishes of the people that are receiving the messages.

That doesn't sound even the slightest bit like a free speech issue. Your typical spammer breaks so many laws already, that to say that they's even a slight confusion with genuine free speech rights is disigenuous at best. It just wouldn't be hard to fix the problem otherwise.

Wait . . . let me save the state a pile of cash.

[mmell]

Anybody got a round-trip air ticket and a decent rifle I can borrow for a few days . . . ?

I'm getting tired of ads from Canadian Pharmacy, Nigerians with millions of quasi-illegal dollars to smuggle out of the country and "get rich now" offers (although I'm glad Debbie is still waiting for me).

1980?

[ittybad]

This same issue was at hand with the fax machine. What it comes down to is simple: Do they have a right to attempt attracting customers? Yes. Do potential customers have the right to not be targeted? Yes. I believe the ruling has already been made: they can send it as long as you can request to not receive it. If they fail to provide a way by which you no longer receive their spam, then they are violating your rights.

  Spam, Spam, Spam, Spam, Spammity Spam!

Re:1980?

[calebt3]

And then they sell your address as a 'live' one. Any way to avoid that?

Wow, nine years?

[HeavensBlade23]

I hate spamming as much as anyone, but nine years for sending Viagra advertisements? Child molesters and bank robbers sometimes get less than that.

Re:Wow, nine years?

[Hatta]

As long as they don't let any pot smokers out to make room for this spammer, we're safe.

Re:Wow, nine years?

[danielsfca2]

Seriously? You think nine years is too harsh?

He should be executed. Spamming is incredibly antisocial behavior that threatens to undermine our entire network infrastructure that makes the world work today. They will NEVER, EVER stop unless they are brought down. And hard.

I actually would, with a straight face and not a shred of remorse, support a death penalty for spammers. Even though I don't think it's necessary for any other crime.

I literally think we should wipe them all from the face of the earth. Painfully, too--not humanely or peacefully.

Since we can't realistically hope for this--our world is far more civilized than the spammers deserve--I think a "harsh" sentence is the next best thing. We can hope that it might be a deterrent if we start locking up large numbers of them for 25 years apiece. At least. Or just tie it to their spammer tenure. How about this. You get 5 years in prison for every year you've been spamming. So for spammers who've been spamming since 1992 that's basically a life sentence. If you object to this, then please tell me how you think it's better for society for these bottom-feeders to continue as free men. They obviously aren't interested in contributing anything, that's why they do what they do. So why would letting them off motivate them to suddenly turn their lives around? It would be cheaper for us to pay for their gruel and poor dental care than the anti-spam software.

Re:Wow, nine years?

[Anne Thwacks]

That works out at one year for every 10 million years of other people's time he has wasted. I think that on the lenient side.

OTOH, I would consider lethal injection to be on the lenient side for Viagra spam, and porno ads to 10 million childen - think of the senators!

Missing link from story as submitted

[arbitraryaardvark]

In editing the submission, scuttlemonkey took out the link to TFA.
Howard wrote:
"Va. Supreme Court to revisit divisive spam case; It upheld convictions but will consider constitutional issue": The Richmond Times-Dispatch today contains an article that begins, "The Supreme Court of Virginia yesterday agreed to a limited rehearing of its closely divided decision upholding the first felony spam convictions in the country."
My earlier coverage of the Supreme Court of Virginia's original 4-3 ruling in this case, issued February 29, 2008, appears here and here.
Yesterday's order granting rehearing on specified issues can be accessed at this link.
Posted at 08:04 PM by Howard Bashman

Re:Missing link from story as submitted

[arbitraryaardvark]

TFA that was omitted had a link to the court's order. Reading the court's order, it turns out that they aren't yet at the stage of giving him a new hearing - they are having a legal argument about whether or not he gets to have a new hearing.
Standing briefs tend to be a bit dry for non-lawyers.
If he wins this round, he can go on to try to win the next round, that the statute is unconstitutional and can't be applied to anyone, even him.

Jeremy Jaynes, Appellant,
against Record No. 062388
Court of Appeals No. 1054-05-4
Commonwealth of Virginia, Appellee.
Upon A Petition For Rehearing
The Court grants the Petition for Rehearing filed by the Appellant limited, however, to the following issues:
1. In the context of a claim brought in a state court challenging a state statute under the First Amendment overbreadth doctrine, are state courts required to apply the same standing requirements as to that claimant that the claimant would be accorded in a federal court considering a similar First Amendment overbreadth claim?
2. Assuming, arguendo, that the first question is answered in the affirmative, has the Appellant (a) waived the argument presented in the Petition for Rehearing at pages 1 through 5 as not made in Appellantâ(TM)s briefs or on oral argument; and (b) is appellate consideration of the issue barred because Appellant approbated and reprobated (e.g., did Appellant agree in prior proceedings in this case that a state court may establish its own standing requirements but in its petition for rehearing contend that a state court must, at a minimum, apply federal standing requirements)?
3. Assuming, arguendo, that the first question is answered in the negative and a state court is not required to accord equivalent standing, as in a federal court, in a First Amendment overbreadth challenge to a Virginia statute involving commercial speech, what is the precedential effect of Wayside Restaurant, Inc. v. City of Virginia Beach, 215 Va. 231, 208 S.E.2d 51 (1974)?

A Better Solution

[hyades1]

Never mind courts and jail and all that crap. Can't we just beat the son-of-a-bitch to death with our G1ANT PEEN1SES?

technical/social problem

[spikenerd]

The spam problem has two parts: 1) The protocols are flawed, and 2) Everyone uses those protocols. The first one is a technical problem and needs a technical solution. The second one is a social problem, and is where government intervention belongs.

...but engineers don't believe #2 will ever be solved, so instead of working on problem #1, they write filters and technical solutions to address problem #2 themselves. And the gov't has no clue that there are technical solutions to #1, so instead of doing anything about problem #2, it uses its powers to try to solve #1 itself by making it a crime to compute in certain ways. What a mess! Couldn't everyone please just attack the problems they are qualified to solve?

Re:technical/social problem

[icebike]

> The second one is a social problem, and is where
> government intervention belongs.

Oh, please, lets not add more government.

If you offer a GOOD email protocol which solves the major problems with SMTP, and put up a few demonstration servers and give the code away free (like sendmail, qmail, postfix etc) it would take off by itself, with no need of government intervention.

Witness any number of today's wildly popular protocols, web applications, chat clients, Voip clients. No government needed.

Someday the "Skype of Email" will show up and simply take over as people adopt it in droves.

Its not done because its HARD to do.

Jail time for irritation

[bluefoxlucid]

You haven't really hurt anyone or anything, you just irritate people, so we're locking you in a jail cell for half a childhood.

I can see if he's selling drugs or illegal shit or stock pumping; but to have a law against "spam" raises questions like "what retard thought this was a good idea?"

Re:Jail time for irritation

[Foobar of Borg]

You haven't really hurt anyone or anything, you just irritate people, so we're locking you in a jail cell for half a childhood.

He's not a child, so don't play the thinkofthechildren card. If you wish to discuss this further, please post your email address in response to this post.

Re:Jail time for irritation

[icebike]

Irritation?

You are aware, are you not, that somewhere between 80 and 95% of all mail is spam, and spam takes way more servers and bandwidth than ALL other uses of the internet combined?

You pay for that, I pay for that. It costs ME money. Some users pay bandwidth by the byte. It costs them even more.

What would your connection cost if spam was once and for all eliminated? What could you ISP save in bandwidth and servers, and pass on to you in lower fees?

Its not JUST an irritation, its theft of services.

Nice try sneaking in that "childhood" analogy.

Re:Jail time for irritation

[borkus]

Actually, he stole many of the e-mail addresses he used. That got him four felony charges, each with 1-5 years in jail. The 9 year sentence was what he got from the jury. The prosecutor asked for 15. Technically, he got off easy. IANAL, but I think if he had decent representation, he would have avoided a jury trial and either plead guilty one count or would have gotten a reduced sentence on each charge. I'm generally not a supporter of long prison sentences; however, this one doesn't bother me really.

Re:Jail time for irritation

[bluefoxlucid]

Now that makes sense. The summary makes this sound like he's going to jail for SPAMMING (free speech issues?), which is wtf.

Re:Jail time for irritation

[bluefoxlucid]

People driving on the roads to make McDonalds runs cost me money in taxes by causing wear and tear to the roads. They should go to jail for not shopping for groceries twice a month.

Re:Jail time for irritation

[bluefoxlucid]

It takes an obscene amount of your life to reach adulthood. 18 years of school, just to get ready for college and maybe getting out of your parents' house. 9 years is half that time. How much of your life do you have to dick around and waste, at any point? I won't lose 9 years of my life collectively filing away all the e-mail I get, much less all the spam.

Re:Jail time for irritation

[falconwolf]

People driving on the roads to make McDonalds runs cost me money in taxes by causing wear and tear to the roads

Fuel tax does, er should, pay for all road building and maintenance. The more you drive the more you pay

Falcon

Re:Jail time for irritation

[tinkerghost]

Go be a sysadmin on a domain that's gotten onto one of these lists. Now go do it in a company that has to preserve all of it's Email. I'd say it's safe to say you'd probably spend 9 years in carrier of admining email servers just coping with spam.

Its constitutional

[nurb432]

The first amendment only guarantees that you can speak, not that you can be heard ( especially at the expense of others )

too bad it doesn't apply to Congressmen

[Shivetya]

I am so sick and tired of them being allowed to send me e-mails just because of their position.

Was nice of them to give themselves exceptions to most related laws.

Re:too bad it doesn't apply to Congressmen

[EdIII]

Great, GREAT farking point. You need to be modded up.

Every time they allow something like this it EXACTLY as if they are allowed to come up to your house, open the door, and sit next to you on the couch and say, "Hi, my name is Joe Blow and I would to screw, uhhhh, represent you in government".

If it is wrong for a telemarketer, and it is wrong for a spammer, then it is wrong for a congressmen. The whole theory behind it being that it serves the public interest to be forcibly made aware of just who is running for office.

I have the right, and I do mean actual right, to stop all communications of any kind from reaching me on my property. Nobody has the right to bypass that, or at least nobody SHOULD.

Re:too bad it doesn't apply to Congressmen

[zippthorne]

You don't have the ability though. Your neighbors' wi-fi leaks onto your property, probably a half dozen or so shock-jock in the morning, generic pop in the evening FM radio shows going through your property all the time.

Not to mention the medium wave radiation given off by the various political commentators.

What are you going to do, erect a giant Faraday cage around your property?

Re:too bad it doesn't apply to Congressmen

[EdIII]

What are you going to do, erect a giant Faraday cage around your property?

Who says that I have not already? :)
 
 

I have the right, and I do mean actual right, to stop all communications of any kind from reaching me on my property. Nobody has the right to bypass that, or at least nobody SHOULD.

You don't have the ability though.

Okay, I can see where you may think I was referring to radio waves. I was not. I should have said "all communications via the Internet, Telephone, or physical mediums such as pamphlets and flyers (junk mail)".

Under those conditions it is possible to filter those communications at the "gate". I was saying that we have the rights to do so, and that other organizations do not have the rights to prevent us from exercising our rights either. I disagree with those that would say that technology like the commercial skipping feature in the older ReplayTV's and AdBlock Plus is illegal and theft of content. Nobody should have the rights to force us to view their content (advertisements). It those self serving congressmen that make laws supporting our rights while specifically exempting themselves. That is hypocritical and wrong.

The communications that I just mentioned are tangible and have a counterpart in the real world (meat space). Radio waves are intangible and can be "shut off" simply by turning off the radios.

If you think that I believed that we have rights to stop radio waves from coming across our properties, you are wrong, which is my fault for not being more specific. I know that we do not possess such rights, and I do not believe that we should possess such rights. It is impossible to channel radio waves around specific properties, so we either create government regulations to manage the radio waves going across various properties or embrace the absolute chaos of anybody transmitting any signal they want too. Hence, the true purpose of the FCC.

Through our government we accepted the rights and limitations granted to us by the FCC to transmit and receive radio waves on our properties and through our devices. I am sure that you have seen the ubiquitous disclaimer on many devices that says, "..... This device may not cause harmful interference, and (2) this device must accept any interference received, including interference that may cause undesired operation.....".

spam is unconstitutional

[someone1234]

It restricts people to use email normally.
These spammers should be imprisoned for life.

Better mail system

[Anonymous Coward]

Could we just design a better server/protocol that doesn't allow spam? Perhaps some peer-to-peer handshaking between mail clients, or even providing a list of unknown sender names instead of the message they want to send.

Spamming is a major crime, treat it that way.

[farbles]

My mail server gets 1.2 million spams a day compared to about 5,000 messages a day of legitimate traffic. My business has suffered from lost customers and lost business from mail delays caused by spam storms, much ill-will from customers has been caused and much time and money has been spent on anti-spam resources, not to mention all the lost technical time which could have gone into research and development of innovative products which instead gets wasted fighting spam storm related issues.

Spamming is not a first amendment issue, it is basic fraud and theft. Mega-jail sentences should be applied because the damage being done is major. It's not just a waste of bandwidth and people's time to delete the messages, it is real dollars and cents damage to the point where it is helping to drive my business under.

If one of my family members were a spammer, they'd be lucky to just have a busted nose and broken limbs. I'd go berzerker on their sorry ass. No mercy for spammers. None.

Re:Spamming is a major crime, treat it that way.

[farbles]

Forgot to mention, spam has tripled in the last eight weeks after doubling twice in the six months before that.

Victimless crime, my Aunt Fanny. Death is too good for the spammers.

Re:Spamming is a major crime, treat it that way.

[Anonymous Coward]

try fail2ban after greylisting, its hugely reduced the load on my mail. 1st spam in a 24 hour period gets your ip into iptables > /dev/null

a friend who runs an isp saw his bandwidth, cpu usage plummet after gresylisting was installed and only ever had two complants...

Re:SLASHDOT SUX0RZ

[himurabattousai]

I figure that the answer to all this is simple--Occam's Razor and all that stuff--and why people try to make it more complex than it is is beyond me. I see three simple points of analysis here, and all three are based on this one fact: spammers don't use their own equipment; they subvert the machines of others to do their will.

1. If someone who is not me sends out mail from my computers, they are indirectly stealing from me through the extra costs involved in having and disinfecting a subverted machine: electrical use, phone useage (if dial-up), excessive bandwidth charges, repair costs, and the devaluation of MY time. It's not as obvious as having someone reach into my wallet, but I still end up losing my wealth because of his selfishness. In most other circumstances, where there are physical things being stolen, that's theft.

2. If that same someone sends out mail from my computers, using my email address, that person is pretending that he, and his communications, are me and mine, respectively. There is a simple, two word term for these types of actions--identity theft. Though there is no direct gain from pretending to be me and no direct loss to my reputation and character, that doesn't matter. The potential for heavy damage exists, and just because no one's life has been ruined (that we know of) because his machine was subverted, it's not a given that such a thing won't ever happen.

3. If that same someone sends out enough junk e-mails to cause people to block my address and prevent me from communicating with people that I need/desire to communicate, wouldn't that constitute a DoS attack? I'd think it would, especially if the e-mail address that I am (or am not) paying for gets shut down because of the actions of someone else. If I directly and maliciously compromise (say, through hacking the server) a website's ability to have its message reach the desired audience, I'd be in a lot of trouble--much like if I physically vandalized a store. I know it's not a great analogy, but it's all I have right now.

Spamming as it is done today is not a free-speech issue. It is an issue of aggression and theft. It is an issue of someone else forcing me to pay for him, in directly and indirectly incurred costs, to steal from and attack me and others. That is why spamming is different from junk mails that end up in my postal mailbox and are paid for by the sender. Postal junk mails may be annoying, but they are at least an honest attempt to serve my needs. Spam is not.

Re:

[clint999]

Bandwidth is expensive. Yes, I know you probably pay a flat rate for cable service or whatever, but the ISP is paying based on how much gets sent and received; if everyone's bandwidth use goes up, the expense will be passed on to YOU. If we could reduce th

Does the first amendment apply in this case?

[falconwolf]

No, the First Amendment doesn't apply in this case. In this case the speech used is commercial speech and it's only been recently that commercial speech has even been considered. The phrase "commercial speech" first appears in a Supreme Court ruling in 1971. Prior to then the First was never applied to commercial advertizing.

Falcon

snail mail and commercial ads

[falconwolf]

In fact, if there weren't any junk mail, first class postage rates would be higher.

Actually first class mail would be cheaper as those commercial flyers are mailed at a lower bulk rate. I used to mail them as part of a job I had as an assistant to a gallery curator. If I recall right we paid less than half the cost of a first class stamp.

And no we didn't send ads out to everyone. In the gallery we had a visitors' guest book which visitors could sign and provide an address if they wanted to be notified of shows.

Falcon

Re:snail mail and commercial ads

[whoever57]

Actually first class mail would be cheaper as those commercial flyers are mailed at a lower bulk rate.

Your logic is faulty. Just because the flyers go at a cheaper rate does not mean that without them first class prices would be higher. A large proportion of the mail costs are essentially fixed: the cost of delivering it from your local post office to your door. Flyers contribute to revenue without increasing this fixed cost.

In addition, don't you have to do some of the post office's work to get those bulk rate? They have to be pre-sorted, I think.

Forgive me, Cowboy Neal, for I have sinned!

[shanen]

Basically, whenever I see the spam topic come up I want to throw out the latest version of this suggestion--and so far it has been at least somewhat relevant in every case. It's a pretty broad suggestion, and I have already confessed my sin of tending to go off topic. Reality is like that. Anyway, the relevant part for this article is down there about how to get a spam fighter first class merit badge--which not even Cowboy Neal has.

How to make Gmail the spam target of absolute last resort.

The goal of this suggestion is to intelligently leverage and focus Google's expertise and credibility against the spammers and their accomplices. But where will the intelligence come from? From me, from you, from *ANYONE* who has a Gmail account and who wants to help oppose the annoying evil that is spam. Aggressively implemented, it could make Gmail into Spammer Heck--maybe to the point where only a fool would send spam to Gmail. (Yeah, there are plenty of fool spammers--but at least we'd get the laughs without the serious spammers.) Less spam = more value in Gmail.

So do you want to fight against spam? You, too, could become a WSF (wannabee spam fighter).

SpamSlam is my 'working draft' label. The idea is roughly based on other anti-spam systems--but with more smarts. Almost all email systems include one level of feedback in a Spam/NotSpam button. (For relative brevity and because it simplifies the draft implementation, I'm focusing on Web-based email here.) Think of SpamSlam as a report-spam-button on steroids. SpamSlam would report the spam, but also do much more. Essentially this Gmail feature would do some of the automatic analysis that any spam fighter has to do, get some intelligent feedback, and hopefully be able to act immediately against the spammer. Speed of action is actually crucial--cutting off the spammers' income is a key goal of this proposal.

Here is an approach to implementing it:

Clicking on SpamSlam would first trigger a low-cost automatic analysis of the email, including the headers. Let's call this Pass 0. Basically this is just using regular expressions to find things like email addresses, URLs, and phone numbers. The results would be used to generate a Pass 0 webform with comments and options (and explanations and links). This pass should also look for obfuscation and ask the wannabe spam fighter (WSF) to help break the spammers' attempts to evade the spam filters. (This is leveraging the spam's features against the spam--if a human can't figure out the spam, then the human can't send money to the spammer.) In many cases, this Pass 0 analysis may be able to suggest answers. If something like "drop@dead.com" appears in the header, then the WSF should just click the option 'fake email'. Perhaps the WSF would only need to click a check box to confirm that "V/1/A/6/R/A" is a drug and categorize the spam. Other times the WSF can actually type in the answer to the spammer's quasi-CAPTCHA, and then the SpamSlam function can do something. At the bottom of the 'exploded email' in Pass 0, there will be the usual submit button.

After the WSF submits that Pass 0 form, more analysis can begin. The data is no longer raw, but partly analyzed, and the system can start checking domains, registrars, relays, fancier types of header forgery, MX records, categories of crime, email routings, and even things like countries hosting the spammer. This kind of analysis will probably take a bit of time, but a new Pass 1 form will be prepared for the WSF to consider. Basically, this would mostly be a confirmation step for the obvious counteractions. That's stuff like complaining to identified senders and webhosts, but also things like reporting open relays and spambots. It also needs more flexibility and 'other' options in the responses at this point--we all know the spammers are constantly going to try to devise new tactics. Again there will be a submit option at the bottom for this Pass 1 form.

That will probably cover most of the responses, but in some cases there may still be a n

snail mail and commercial ads

[falconwolf]

Until they start locking up the directors of capital-one and other similar companies (that do snail mail spam), what right do they have to lock up email spammers? I hate spam as much as the next person, but it is no different.

It takes some research but you can opt out of at least some of those offers. For instance OptOutPrescreen.com let's you opt out of credit card offers.

Falcon

The first amendment does cover ads

[falconwolf]

No, the First doesn't cover ads, see Free speech v commercial speech. After 1971 Supreme Court rulings whittled away at the separation of commercial speech and free speech. Whereas SC rulings before then maintained the separation. If that isn't enough, for instance if you don't accept that website, then try Findlaw. Julie Hilden writes that commercial speech should have the same First Amendment rights, rights it didn't have in 2001.

Falcon

X-Prize for DEFINITION of spam

[mi]

The first amendment doesn't cover theft of resources, scamming, lies, shouting "fire" in a crowded theatre, etc.

Heck, thanks to a certain odd couple McCain-Feingold, it does not even cover Free Speech and Freedom of Association any more...

But I digress... What we need is an acceptable definition of spamming, that's better than "I know it, when I see it", which is the current standard. Maybe, a cool and well publicized X-prize would result in somebody coming up with one?..

Re:X-Prize for DEFINITION of spam

[falconwolf]

What we need is an acceptable definition of spamming, that's better than "I know it, when I see it", which is the current standard. Maybe, a cool and well publicized X-prize would result in somebody coming up with one?..

That's easy, spam is unsolicited commercial e-mail. I apply it to snail mail as well.

Falcon

Re:X-Prize for DEFINITION of spam

[TheLink]

"What we need is an acceptable definition of spamming"

I don't mind spam as long as they stuck to not telling lies.

Most spam I see has one or more of the following lies:

1) False return address and sender (recently one of them used my email address as return address)
2) False Subject
3) False names
4) False content e.g. "Email me at xxxx@yyy only, because I am using my friend's email to write this"

When someone has to lie so much it should be pretty obvious they are doing something wrong, even they themselves know they are doing something wrong (otherwise why use someone else's email address instead of their own?).

They just lie to themselves and others that they aren't doing something wrong.

I believe fraud is lying for personal gain.

I doubt fraud is protected speech yet.

I suppose we don't normally categorize political campaign speeches as fraud, but they do seem to fit :).

Re:X-Prize for DEFINITION of spam

[mvdwege]

There's a perfectly acceptable definition of spamming: If I didn't explictly ask for mail that was sent in bulk, then it is spam.

Note that this definition does not cover unsollictied mail specifically meant for me, like private replies to this post.

Mart

Re:X-Prize for DEFINITION of spam

[mi]

That's easy, spam is unsolicited commercial e-mail. I apply it to snail mail as well.

Then you have to apply it to sales-pitches on the street (and the handing out of fliers). And that activity is certainly protected by the First Amendment...

To balance their right to speak with our right not to listen, when we don't want to, a better definition is required...

Re:X-Prize for DEFINITION of spam

[falconwolf]

That's easy, spam is unsolicited commercial e-mail. I apply it to snail mail as well.

Then you have to apply it to sales-pitches on the street (and the handing out of fliers). And that activity is certainly protected by the First Amendment...

No I don't, I can and easily do avoid sales pitches on the street, but I can't avoid spam that makes it past my filter or is placed in my mailbox.

Falcon

Your logic is faulty.

[falconwolf]

No I think yours is faulty.

Just because the flyers go at a cheaper rate does not mean that without them first class prices would be higher.

You're right, instead of being higher they'd be lower.

A large proportion of the mail costs are essentially fixed: the cost of delivering it from your local post office to your door. Flyers contribute to revenue without increasing this fixed cost.

Weight and volume are not fixed, and bulk mail increases both. As these increase either more tyme is needed to deliver the mail or more people are needed to deliver them, both of which increase costs.

In addition, don't you have to do some of the post office's work to get those bulk rate? They have to be pre-sorted, I think.

Yes, in order to qualify for bulk mail what's mailed has to be sorted by zip code. Almost all of my tyme doing bulk mail was sorting it. That however does not decrease either the volume or the weight.

Falcon

free speech

[falconwolf]

I'm free to buy my own house and spray-paint the side of it.

Actually that depends on where you live. In some neighborhoods the Home owner's association has bylaws that prevent people from painting the exterior of their homes however they want. Here's what Copper Creek Association has to say.

Falcon

Re:free speech

[Trailer Trash]

Being president of my HOA, trust me when I say that I'm just making an example. If someone did that in our neighborhood it wouldn't be allowed.

Freedom of speech ?

[Anonymous Coward]

Its allways funny to read that some people (judges included) seem to be convinced that "free speech" trumps the wish of the intended target *NOT* to hear the message.

As long as any state (US-of-A or any other country) leaves any sugestion of the above being true (by permitting religous or political speech to target an un-willing recipient) they are nothing more than comical in their antics.

Free speech should/must/ought to stop where the recipient starts. If not, "free speech" is nothing more than an "only *our* kind of bullies may do that" kind of verdict. :-(

The abusal of the "free speech" (I don't think that that word means what you think it means) trump-card is gut-wrenching.

Where "free speech" should be protecting a conversation between two (or more) *willing* participants it nowerdays is used (by scoundrels as well as as the gouverment) to beat *unwilling* recipiants into submission. An attitude that stinks mightily, no matter which direction it comes from.

No. The 1st Amendment doesn't apply.

[macdaddy]

This can be quashed with a very simple Q&A. Simply ask Mr Jaynes if he made any money from his spam operation. If yes then he's screwed. The Bill of Rights covers and individual's rights. The 1st Amendment does not apply to commercial speech. Case closed.

V for Vendetta:

[falconwolf]

People should not be afraid of their governments. Governments should be afraid of their people.

Two things, one is I totally agree with this statement. But is it said in the movie?

Falcon

Re:V for Vendetta:

[Kiralan]

Falcon, Yes, but I don't recall exactly where. If you haven't seen it, it is well worth watching, almost a cautionary tale, considering the current U.S. Government security hysteria. Caution, spoiler in this link!!! http://en.wikiquote.org/wiki/V_for_Vendetta_(film)

Re:V for Vendetta:

[falconwolf]

Falcon, Yes, but I don't recall exactly where. If you haven't seen it, it is well worth watching, almost a cautionary tale, considering the current U.S. Government security hysteria.

Though I like Natalie Portman's acting especially in the movies "Where the Heart Is" and "Leon, the Professional" I wasn't interested in either "Garden State or "V for Vendetta".

Falcon

pot and violence

[falconwolf]

As long as they don't let any pot smokers out to make room for this spammer, we're safe.

As I see no visual cue I hope this was a joke. Governments, and businesses, have done a pretty good job of brainwashing people into believing pot makes people violent.

Falcon

Re:pot and violence

[Hatta]

Yeah it's kind of sad that someone might actually think that.

Re:pot and violence

[falconwolf]

Yeah it's kind of sad that someone might actually think that.

Well, I said it because violent criminals have been released to make space for drug offenders. It's sad when a murderer or rapist serves less tyme in gaol than nonviolent drug offenders do. But that's what the US's fake War on Drugs has done.

Falcon

spam

[falconwolf]

The summary makes this sound like he's going to jail for SPAMMING (free speech issues?)

Spam is not a free speech issue, it's a commercial speech issue.

Falcon

four-part test source

[Trepidity]

The four-part test for regulation of commercial speech was first outlined in the 1980 U.S. Supreme Court case Central Hudson Gas & Electric Corp. v. Public Service Commission .

The four prongs are actually somewhat different than summarized above, though. Roughly, they're:

1. Is the speech of a sort that would be protected in the first place? (i.e. fraudulent advertising doesn't count)

2. Does the regulation address a substantial government interest?

3. Does the regulation have the effect of actually advancing the asserted government interest?

4. Is the regulation the least restrictive way of achieving that government interest?

The fourth prong has been weakened a bit in subsequent cases to only require the regulation to be a narrowly tailored one that results in a good fit between the governmental interest and the means of advancing it, since proving something to be the "least" restrictive way of achieving something is tough in practice, and even if you could, sometimes a simple but fairly narrow rule might still be preferable to a slightly less restrictive but hugely complex rule riddled with special cases.

Slavery

[Max_W]

Slavery is also unconstitutional. And I (as millions of others) am the slave of these guys. I have to work for them for free deleting their junk from my in-box.

Lock him up and lose the keys. Put him in one cell with the Tea-bag.

There is the difference between free speech and sending out millions of Viagra or enlargment messages.

Fisherman boat & cruise missiles

[Max_W]

When a fisherman boat was hijacked by pirates near the coast of East Africa the US sent war ships to destroy pirates facilities in the area. How much could this boat cost? 500 grands?

Spammers cause losses of billions dollars to the world economy. Everyone spends his/her work time viewing and deleting spam, installing and adjusting spam filters, etc. Billions and billions of dollars, euros, pounds, etc.

Why in this case an agent could not be sent to a known location. Enter the house while a spammers is shopping and sprinkle some salted water into the spammer's computers? And immerse the spammer's backup hard disks in water?

Why when an evil leader harass some mountain villagers the military expedition worth trillions is undertaken? But when the real harm to the World economy is done suddenly there are no black helicopters, no trained secret agents available?

Not to bomb by cruise missiles, not to send the carriers, not to deploy an army overseas, but just pick up the lock, open the door and use some salty water on spammer's computer equipment?

Re:Spam/advertizing should NOT be protected by th

[Anne Thwacks]

Bailiff, take this scumbag out by the dumpster, kneecap him, gut shoot him, then feed him his own testicles... RIGHT NOW!"

In legalese "He shall be taken from hence to a place of intoxication, where he hshall be tiddled until he winks!"

Sorry, that was from Monty Python. I mean

"He shall be taken from hence to a place of execution, where he shall be hung until dead, and then buried in unconsecrated ground."

The First?

[Tom]

If this one goes through, I'm for re-writing the 1st amendment. Or shooting the judges.

Really, why is this even allowed a hearing? Of course you have the right to say what you want. But you don't have the right to force me to listen!

First Amendment does not cover littering

[Eustace Tilley]

Laws against littering are not unconstitutional unless the discriminate on the types of litter based on the ideas printed on the litter. "You may dump menues on the street, but you may not dump manifestos on the street" would be unconstitutional.

Spam is litter.

Spam the judges

[AnalogDiehard]

Find the office addresses of the appeal judges, and then sign them up for every conceivable junk mail out there.

Only then will they understand.

Homeowners Associations

[falconwolf]

Being president of my HOA, trust me when I say that I'm just making an example. If someone did that in our neighborhood it wouldn't be allowed.

Well I brought up Homeowners Associations because I've met a number of people who didn't know about them and that they could prevent people with painting their homes however they want.

Falcon

SPAM V junk mail

[tinkerghost]

Until they start locking up the directors of capital-one and other similar companies (that do snail mail spam), what right do they have to lock up email spammers? I hate spam as much as the next person, but it is no different.

You're right, but not for the reasons you think:
Spam as defined by the law is unsolicited electronic commercial communication.

Junk Mail is defined as unsolicited commercial snail mail.

Note that SPAM is legal as long as you don't engage in forging headers, provide a valid subject, & you provide a functional method of opting out. The reason this guy was convicted is because he was forging headers, using deceptive subject lines, and using the opt out as a validation tool for email addresses.
If a company issued junk mail with a false return address, included false advertising, or sent more mail after receiving an opt out request, then they would be hammered with postal fraud charges and get some club fed time also.