Virginia Supreme Court Strikes Down Anti-Spam Law

Skater writes "The Washington Post is reporting that the Virginia Supreme Court has struck down the anti-spam law that was used to convict spammer Jeremy James, on the grounds that the ability to be anonymous was more important than the problem of spam. Strangely, the same court only a few months ago upheld the law. 'The court noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by Publius would violate the [current Virginia] statute." The court suggested that the law does not limit its restrictions on spam to commercial or fraudulent e-mail, or to unprotected speech such as pornography or defamation. And when the state suggested that the court merely tailor a restriction to the law within its opinion, the court declined.'"

Comments

What's the judges email address?

[Anonymous Coward]

I'm going to send him some spam... err, I mean... anonymous speech. The first amendment regularly allows for the limitation of commercial speech.

Re:What's the judges email address?

[Anonymous Coward]

The first amendment regularly allows for the limitation of commercial speech.

Couldn't even be bothered to read the summary, could you?

Re:What's the judges email address?

[Anonymous Coward]

You must be new here. (No, I didn't actually read your post, either, I just figured this was an appropriate response.)

Re:What's the judges email address?

[Anonymous Coward]

I need to quit talking to myself...

Re:What's the judges email address?

[Anonymous Coward]

Yeah, you're telling me.

Re:What's the judges email address?

[Anonymous Coward]

Shut up! Both of me!

Re:What's the judges email address?

[Man On Pink Corner]

There's certainly nothing in the text of the First Amendment that limits commercial speech. Any "allowance for the limitation of commercial speech," pornography, or anything else, is an invention of later ("activist") courts.

However, spam is not speech. Spam is sending hordes of bums through every neighborhood in town, nailing copies of the Federalist papers to my front door at 3 o'clock in the morning. The merit of the content being nailed to my door is not the least bit germane. The fact that my property is being abused is all that should be needed to put assholes like James away.

Re:What's the judges email address?

[Virmal]

In Scientific Journals terminology, it is called "Personal Communication" ...

Re:What's the judges email address?

[Sloppy]

Actually, to really make your point, you should send out spam with the judges' return address, and the judges' phone number for accepting orders for the Viagra that you're selling. The decision doesn't merely uphold a right to spam; it upholds the right to spam and make it look like someone else sent it.

Re:What's the judges email address?

[lysergic.acid]

i thought it was 'intrapersonal communication'.

Re:What's the judges email address?

[russotto]

The decision doesn't merely uphold a right to spam; it upholds the right to spam and make it look like someone else sent it.

No, it doesn't. It upholds the right to send out certain bulk emails anonymously. The legislature wrote a law which prohibited that, along with a whole bunch of other things that perhaps could be permissibly prohibited, but since the law also prohibited things which were a matter of free speech, it was found to be overbroad. The judges also decided it was not within their scope to try to strike down the law only in cases where it was in conflict with the First Amendment (in effect re-writing the law), saying that writing the law properly was the legislature's job.

Re:What's the judges email address?

[lysergic.acid]

personally, i think spam should be outlawed, but i think you'll have a hard time arguing that spam is any more damaging to your property than other types of unsolicited e-mails. how would you show that spam 'abuses your property'? what property is it abusing?

it seems to me that the most obvious way of to outlaw spam is to treat it the same way as auto-dialers, which are a public nuisance. though the defense may argue that e-mails do not cause a direct disruption the same way a phone call does, as it's more akin to junk mail.

but either way it's a public nuisance and businesses who employ such marketing/advertising practices should be punished. it's easier to go after businesses who hire spammers than the spammers themselves. and if there's no one left willing to hire spammers then the problem will go away on its own.

Re:What's the judges email address?

[Fulcrum of Evil]

i think you'll have a hard time arguing that spam is any more damaging to your property than other types of unsolicited e-mails. how would you show that spam 'abuses your property'? what property is it abusing?

That's what spam is. Unsolicited and in large quantities.

Re:What's the judges email address?

[lysergic.acid]

unsolicited can be anything that you did not solicit someone to send. i agree with you on the quantity definition. but anyone who sends you an e-mail without prior consent from you has sent you unsolicited e-mail. if all such e-mails were banned, then if someone simply contacts you even for non-commercial purposes, and you happen not to like that person, then you could accuse him of sending you "spam".

have you never contacted or been contacted by strangers over e-mail before aside from spam? i've gotten unsolicited e-mail job invitations because someone came across some work i did in a public contest. i've also been contacted by people who got my e-mail address from my online portfolio and wanted to hire me for a project. similarly, i've gotten casual e-mails from people who obtained my e-mail address one way or another. so how do these people know beforehand whether or not i'm going to consider their e-mails unsolicited, since technically all of them are?

Re:What's the judges email address?

[Fulcrum of Evil]

The point is that you ban the combination as spam; sending a handful of emails is far removed from sending millions, and there's no legitimate reason to do it.

Re:What's the judges email address?

[dimeglio]

Spam requires attention and my attention is extremely valuable. I'd rather give attention to an important job offer in my inbox but first I have to sift through a dozen "legitimate looking" emails to find the right one.
Imagine if all you junk mail (the physical type) were all sent to you in envelopes from a potential employer or looked like a postcard from a friend abroad.

To me this is why spam is worse than junk mail.

Re:What's the judges email address?

[nanoflower]

Okay, how about this. Let's give the botnets out there your email addresses. Work related email addresses would be best. Then the bots can hit your email addresses with email for Viagra or penis enlargment or the good people of Nigeria can ask you for help in laundering some money for them. When the servers come crashing down from the millions of email messages then you can explain how no property is damaged.

Re:What's the judges email address?

[TheRaven64]

The problem with spam laws is the same as the problem with drug laws - they exist because of secondary effects. Unsolicited email, itself, isn't much of a problem. When you are distributing malware to create a large botnet to send spam, that's a problem. When you are forging From: headers and someone gets a few tens of thousands of bounces from badly-configured mail servers (yes, I'm looking at you Google), then that's a problem.

Re:What's the judges email address?

[mysidia]

The first ammendment doesn't say anything about a right to anonymous speech that invades another individual's private mailbox.

Publishing anonymous letters is VERY different.

An available venue for publishing anonymous information is a website.

Or you get someone who is willing to identify themselves as publisher to dispatch the mail without learning your identity.

Re:What's the judges email address?

[lysergic.acid]

so as long as they only send a couple thousand at a time it's alright?

i know it may sound like there's a really easy solution to this problem (well, there is, but i don't think communism would work in our current culture), but there's a lot more complexity to this issue than simply banning the sending of X number of "unsolicited" e-mails.

at the record label where i used to work, we occasionally sent out mass e-mails to various mailing lists which we managed. we run an opt-in newsletter for fans who can submit their e-mail address via a form on our homepage. we didn't actively seek out e-mail addresses or purchase e-mail lists from anyone. all newsletter subscriptions were volunteered by visitors to our site. the last time i checked, that list contained well over 10,000 e-mail addresses. and because of the size of our mailing list, we ran into problems with our web host, though we solved the problem with the web hosting support rep by sending out the e-mails in blocks of ~100 e-mails at 2-3 minute intervals.

while i can think of no reason why someone would do this, i still have to acknowledge the possibility that some of the e-mail addresses on our list could have been added by someone other than the actual owner of the e-mail address. we eventually changed the subscription system to require an e-mail confirmation to eliminate such problems, but there were still thousands of e-mail addresses dating back 5-6 years which we could not verify. in theory, anyone who doesn't want to subscribe to our newsletters can unsubscribe via the website or with a simple e-mail with "unsubscribe" in the subject line, but that still doesn't eliminate the possibility that some people still might consider our newsletters 'unsolicited'--someone may have subscribed to our newsletter originally, but then changed their mind and never bothered to unsubscribe.

beyond that, we also manage a radio list and a publicity list which we occasionally sent stuff to via e-mail or by conventional mail (things like promo CDs, press kits, touring info, etc.). these contacts are generally acquired through business contacts, other people's websites, etc. now, we assume that these people may be interested in the info we send them (and most are), but they can still be considered unsolicited e-mails nonetheless.

if you want to outlaw spam, i think you would need a clearer definition of what comprises a spam e-mail, and one which doesn't hinder legitimate business operations. unsolicited is too broad of a term, as it's just anything you don't want and didn't directly ask for. but that potentially covers the majority of legitimate e-mails as well.

Re:What's the judges email address?

[lysergic.acid]

well, also spam usually lacks proper return addresses and is a general nuisance to e-mail servers.

i wholeheartedly agree with you that it's worst than junk mail. i mean, it's a lot easier for me to sort out junk mail from legitimate mail, partly because of their deceptive appearance as you said, but also because e-mail is cheap to send, and the internet is international. so instead of just receiving the junk mail from my local area--5 or 6 pieces a day, i'm receiving spam from all over the world--hundreds a day. so the volume is much larger.

but the problem is that judges and legislators don't see the difference between spam and junk mail. they see it as a legitimate form of commercial advertising. in reality, spam not only fills up our mailboxes, but it also pollutes search engine results and it generally makes the web/internet less useful for the public.

i think this just goes to demonstrate the huge disconnect between the people who run our government, and the information culture we live in. they have no grasp of why spam is such a big problem. and as long as it's used to promote business and fuel the economy, pro-business legislators have no problem with the headaches it causes people.

Re:What's the judges email address?

[lysergic.acid]

so you wouldn't mind having your inbox filled with v1agr4 and penis enlargement ads if they didn't crash mail servers?

if someone crashes a mail server with a botnet that's a DDOS attack, but that's not why spam is problematic, and that's hardly an accurate description of what constitutes spam. most spammers aren't trying to crash e-mail servers--why would they? their spam messages wouldn't get through.

Re:What's the judges email address?

[hedwards]

There's certainly nothing in the text of the First Amendment that limits commercial speech. Any "allowance for the limitation of commercial speech," pornography, or anything else, is an invention of later ("activist") courts.

I wish people would stop saying "activist courts" or "activist judges." The first amendment has never been an absolute unassailable right there has always been exceptions for forms of speech which cause serious damage to the country at large.

The issue with spam and the reason why it's banned under law isn't the speech component, it's the other things that go along with. For instance breaking into other people's machines to use them for serving. Falsely identifying the source of the messages, refusing to stop sending them when requested. As well as the fact that most spam is also fraudulent in some fashion such as pump and dump, phishing and other forms of scamming.

The first amendment was never meant to protect all forms of communication, it does not for instance require that a paper include all letters sent it. And it doesn't guarantee the right of a person to be heard by a particular person unless that particular person wants to.

Re:What's the judges email address?

[lysergic.acid]

in a way that's true. i think it's also just a specific case of a more general problem, which is excessive advertising in general. but we've become so used to being bombarded with advertisements offline that legislators can't see the problem with what's basically the online extension of this problem.

the internet connects each user with millions of people from all over the world. it allows for near-instantaneous exchange/transfer of information. but the same technology that allows us to contact/reach people with ease, also allows businesses/advertisers to do the same. you can't send out a million letters or make a million telemarketing calls in a split second--and do it for pennies--off-line. so we've never had to come up with regulations to prevent such abuses.

Re:What's the judges email address?

[DrFalkyn]

Better yet, his home phone number. I mean if it can apply to data lines, it should apply to voice lines to, right?

Re:What's the judges email address?

[Dan541]

Filtering spam is no problem these days, for every 500spams I might get 1 into the inbox at worse case scenario and them only false positive I have ever had as an email from Microsoft which got flagged because it was poorly coded.

The REAL problem is system resources, processing thousands and thousands of emails is expensive and if 99% of email is spam that's allot of money being spent just dealing with spam.

Re:What's the judges email address?

[Dan541]

Voice is just a type of Data as is Text.

Re:What's the judges email address?

[lysergic.acid]

yes, spam filtering allows you to ignore the problem, but the resource costs are still tremendous. spam sites are just as problematic.

the way i see it, spam e-mail, spam websites, search engine gaming (blackhat SEO), malware/botnets, and domain name squatting are all related problems arising from spammer culture.

people who lack real talents dedicate their entire lives to being internet bottom-feeders in their blind-pursuit of profit/wealth. but this parasitic mentality is a direct outgrowth of our capitalist society. if we measure the worth of an individual by the amount of money they make rather than how much they contribute to society, then there will always be these seedy opportunistic professions that, while a public nuisance, are legitimized by their commercial motivations.

our government also seems to put business interests above public good. so while security researchers are persecuted by the justice system for pointing out the weaknesses in a commercial company's product or service, businesses who hire spammers or pay malware developers are simply viewed as enterprising businesspeople. likewise, hackers who have no malicious intentions and hack into computer systems & networks purely out of curiosity and a desire for knowledge are given disproportionate jail sentences and made examples of. whereas, greed-driven spammers & malware writers that plague the internet and make the lives of everyone more difficult (and also cause significantly more harm) aren't even pursued by law-enforcement. that just encourages young hackers to become greedy spammers since you get to make money and won't get in any trouble with the law.

of course, it doesn't help that the judges & legislators in charge of forming public policy are all so out of touch with technology that they think a 'pop-up window' and 'file menus' are patentable ideas.

Re:What's the judges email address?

[ps2os2]

Well now I thought that the Virginia Court didn't really did not put much thought into this. I would be really surprised if any of the judges had an email account.

On the other hand what spam is to you or me may be acceptable to some one else (I doubt it but it is possible). While the "spam" is piling up in the bucket I truly wished that somebody would enforce the "do not call" rule breakers. I have lodged so many complaints that the FCC is getting tired of me. One of the larger abusers are the political people who disingenuously excluded themselves from the law. The politicians as usual get away with murder. Maybe it is time for a revolt and just get rid of all politicians and get in new ones.

Re:What's the judges email address?

[Anonymous Coward]

Who are you?

Re:What's the judges email address?

[TheRaven64]

You can't easily filter telemarketing calls or snail mail circulars either. It's now very easy to filter 'legitimate' spam with 100% accuracy. It's only when spammers resort to committing fraud as well (spoofing headers, obfuscating the text, and so on) that it becomes difficult. Without the botnets or the spoofed headers, spam would not be a problem. Blacklists would quickly identify every subnet originating spam and block them.

Re:What's the judges email address?

[Khyber]

Spam abuses my property if I'm paying for a limited amount of bandwidth per month (I.E. Australian ISPs) and it eats all of that bandwidth up.

Clueless judges

[jmorris42]

If 'Publius' spammed my inbox with the Federalist Papers I'd want the asshole's account yanked as much as the latest grow yer tool spam. Spam is unsolicited broadcast mail, period. Zero tolerance.

The correct way to publish would be for Hamilton & friends to open a blog under the Publius pseudonym.

Re:Clueless judges

[jellomizer]

Well if the courts gave a law that made it illegal for you to send an email anonymously it would probably have just as many slashdotters saying how it is a violation of our rights. Sometimes to protect your rights you need to deal with people who abuse them.

Re:Clueless judges

[PunkOfLinux]

This is such a logical problem. It wouldn't be published by e-mail, you're right. Not only that, this is a pathetic appeal, trying to get patriotic support for SPAM. What the fuck.

Re:Clueless judges

[beakerMeep]

So what's the difference between sending a whistle blower email anonymously to a reporter and saying "H1! my f3llow 3recti1e dy5funcktion Fr@nds!" to your 100,000 of your closest personal buddies?

lipstick.

Re:Clueless judges

[The Cisco Kid]

You have the right to send a message anonymously, so long as *you* bear all the costs associated with its transmission and receipt. Since there is a cost in terms of time to review, that pretty much covers sending anonymously to private individuals. The media, your representatives, and perhaps even law enforcement, might be expected to accept anonymous messages - but not by email, generally.

If you send me an email, the mailserver at my end *WILL* record the IP address of the server it gets it from (right in the message headers), and unless your email providers server is horribly misconfigured, it will have already recorded either your PC's IP address, or in some cases some other information that can be used to identify who controlled the Internet access account that was used to send it. (Or, misconfigured servers that *dont* record that information, are generally placed on blocklists and my server wont accept any email from them)

You want to send anonymously - put your message on paper in an envelope, pay the proper postage, and mail it.

Re:Clueless judges

[jrockway]

There isn't much difference. If you don't want to receive e-mail, don't.

Re:Clueless judges

[Anonymous Coward]

Thats the problem. The law this clown was prosecuted for violating didn't distinguish between the two. The law was deemed un-constitutional, so the conviction got tossed.

Re:Clueless judges

[fugue]

What is wrong with us, as a society? The difference is obvious, and yet we can't figure out how to write it down. Let lawyers try, and the language defines its own loopholes with words like "substantially identical", "more than 1000", "for commercial gain", "possible interest to the recipient", etc. There's really very little question about what is spam, but there is much question about what is reasonable for a court to decide. Our lawyers need to grow up and stop being such babies about interpreting the letter of the law, but that has its own problems. The real solution to the spam problem is probably vigilante justice, ninja-style, baby.

Of course, if I had stolen Death Star plans, I'd use unsolicited email too. Illegal? Certainly! On quite a few levels.

Re:Clueless judges

[Kingrames]

I'd agree, but lately, those in power have viewed my constitutionally protected rights with as much disdain as they do spam.

Re:Clueless judges

[ribit]

I think the supreme court is the grown-up one in all of this... They just told the lawmakers to start writing laws with more care.. this is a good thing.

Re:Clueless judges

[ribit]

Why should snail mail be the only method for anonymous messages?

Re:Clueless judges

[PachmanP]

Well it would give CowboyNeal something to do and improve the quality of AC posts. I mean if you had to actually mail it in and someone had to physically type it in, there might be slightly less ascii goatses.

Re:Clueless judges

[jbezorg]

If you send me an email, the mailserver at my end *WILL* record the IP address of the server it gets it from (right in the message headers), and unless your email providers server is horribly misconfigured,...

Or someone spoofed the IP in the TCP packet.

Re:Clueless judges

[jopsen]

As far as I remember the anti-spam EU directive doesn't allow anonymous emails... E.g emails with fake sender-address are not legal... However, what the deal with that... If you send an anonymous email who is going to punish you... If you're anonymous. If they do find you and drag you to court, then you weren't really anonymous in the first place. :)

Re:Clueless judges

[Just Some Guy]

Our lawyers need to grow up and stop being such babies about interpreting the letter of the law, but that has its own problems.

Yeah, minor problems like being able to clearly know what is legal or not.

Re:Clueless judges

[Firehed]

Yes. The problem is that in order to avoid potential ambiguity in laws, they need to be written in unreadable legalese. That certainly requires a lot of care (those age-old debates about having used a semicolon instead of a comma, etc).

So, say there's a simple law on the books: "Sending spam is illegal." Then you have to define spam, legally. It's easy enough to do, but damn near impossible to do without also including legitimate communications under the umbrella term. Maybe "a business sending out messages to mailing lists where those on the list haven't opted-in first". But then the spammers stop working under some sort of protective LLC, and it has to be expanded to cover individuals. But then you can't send out CCs legally anymore either.

Unfortunately, there's nothing (AFAIK) in the email protocols about how to deal with unsolicited messages at a mailbox level. Whitelisting is the closest we really have, and that blocks way too much legitimate communication. The problem is that a legal solution won't help since spammers don't care about breaking the law; but what we have as a technical solution is really the best way to do things (generating lists against billions of messages, a la gmail) despite still not being great.

Re:Clueless judges

[ribit]

Maybe the answer is smarter (sentient/AI?) systems that truly act as your agent.. The current filtering tools seem quite hit and miss..

Re:Clueless judges

[Whyte Panther]

You're acting as if the judges made this decision from a pro-spam position. It's not. They are technically correct that the law is too broad, and covers certain things that shouldn't be illegal. It's a shame that it means that spam runs free (In VA) for the time being though. I wonder if because of this law being struck down, that if Virginia creates a more specific law to replace it, if it will be able to exist retroactively to the date the original law was passed...

Re:Clueless judges

[mysidia]

The difference is the whistleblower is not sending bulk e-mail or e-mail that is unsolicited.

They are personally sending the message.

And a reporter is unlikely to wish to request an investigation, pursue action, or charges against their own source.

Re:Clueless judges

[KGIII]

Hell, that's a great idea. I am gonna print me up some right now and mail 'em to my congress critters.

Re:Clueless judges

[defaria]

By your own admission there's a "time to review" cost. As such, mailing something and placing that junk in my mailbox incurs that "time to review" penalty (even if I summarily and quickly toss it). IOW "time to review (and deal with)" applies equally to the junk snail mail we all receive. Why ain't that outlawed?

What if... we all made it a tradition to gather up all of that junk mail and on the last day of the month we all went down to the company (ya know - car sort!) and "return" it to them? They'd be so buried in junk mail they would not be able to enter their buildings!

And speaking about marketers - did you hear the one about the comedian who stayed at the same hotel as was hosting a telemarketing convention and then spent all night randomly making calls to other rooms! Gawk I wish I would have thought of that! That was golden - just golden!

Re:Clueless judges

[mysidia]

Should be clear.. don't write down artifacts that spammers of the future may change at a whim. We need to have the essence be what is written into law.

Instead we should declare all e-mail is spam, except mail we can define as not spam.

We naturally exclude communications such as business to individual, except in very restricted circumstances.

It is always a burden of the sender to ensure the mail they send is not spam. If an e-mail recipient sends a message to an address that mailed them requesting it to stop, all further communications will be considered spam.

There is no allowance for time. E-mail senders must update any mailing lists and process removal requests immediately, it is their burden to do so; a grace period of no more than 1 hour may be allowed to process list removal requests.

Mail that is not spam meets one of the following characteristics, and all other mail is spam, and prohibited:

1. You send an e-mail to yourself. Or have an automated system that sends messages to yourself. This is not spam, as long as the automated system is within the recipient's full control, and the recipient can turn it off at will, whenever desired. (Otherwise, the operator of the automated system who has that control is responsible for spamming)
2. Someone has specifically and personally given and not revoked from you a physical human individual their e-mail address without specifying any conditions. Then your personal message is not spam. It doesn't mean they've given a business partner of yours the address, it doesn't mean they gave someone the address, and you bought a list of addresses that included it. It doesn't mean they've given your employer the e-mail address, etc.
3. The condition (2) above, where the person personally specified conditions for your use of the address, and you follow all those conditions. If at any time they reply to your message or inform you they revoke permission; this condition no longer makes the message non-spam. The recipient may change conditions at time: unless (3) is met, no contract whatsoever may prohibit the recipient from exercising their right to revoke or revise conditions at will.
4. A written contract between a sender and a recipient, requiring a recipient to accept or respond to certain communications makes those messages not spam, but ONLY in the explicit circumstances where the instrument is physically signed by all contracting parties in the presence of witnesses to the fact that all e-mail communication requirements are prominently spelled out and fully understood by all parties.
5. You are an automated system that sends e-mails of a certain type, the recipient provided their address via confirmed opt-in, has not requested to be removed, you constantly inform of the methods to stop the messages, and you send e-mails only of the expected type and for the expected reasons. For example: a bank account e-mail alert service that sends notifications based on certain conditions. Reasons listed in the fine print do not count: all reasons must be communicated prominently, up front, during the opt-in process the purposes must be specific, restricted, and listed alone, prominently.
6. The e-mail address is already listed by the owner's specific and direct request to have their address listed in a public or private list of e-mail addresses, and the message is automated or manually sent by the maintainer of the list, with the sole purpose and message being to administer the list.
7. The e-mail address is found in a public place, and the sender is making a personal contact based on that listing, the contact is private, not repeated: the message is related to any cause for the e-mail address listed in that place, and follows any conditions given in that place for use of the e-mail address.
8. The e-mail is contact between two businesses that have knowingly provided their e-mail address for contact related to a business purpose. The e-mail addresses inv

Re:Clueless judges

[Digital End]

Our lawyers need to grow up and stop being such babies about interpreting the letter of the law

Yeah... that'll happen. You see, if lawers stopped doing that, then we won't need lawers to protect us from that. I'm sure an entire line of work would admit they are their own problem.

Re:Clueless judges

[Dan541]

My email address is no secret I can be easily identified by a whois lookup on my domain, a search on facebook (i think) or if I forget to take my name out of the from field.

However if I send you an email from my Gmail account you wont know who I am, I would consider that to be anonymous email.

IP addresses are only useful to people who can obtain access to their records.

Re:Clueless judges

[Anonymous Coward]

so i guess that open relay thing didn't work out too well...

Re:Clueless judges

[mpe]

So what's the difference between sending a whistle blower email anonymously to a reporter and saying "H1! my f3llow 3recti1e dy5funcktion Fr@nds!" to your 100,000 of your closest personal buddies?

Most likely in the first case the email is being sent to an email address which is advertised in some way as being for the submission of newsworthy information to a reporter. e.g. it's published together with articles that reporter has written in newspapers, on websites, etc.
The idea that a subset of someone's friends who have could benefit from a certain drug and understand "leet" numbers 100,000 is just isn't credible.

Re:Clueless judges

[Anonymous Coward]

thbis is slashdot, if there was a captcha like that, it would REQUIRE the production of a new ASCII goatse

Re:Clueless judges

[Anonymous Coward]

what's the difference between sending a whistle blower email anonymously to a reporter and saying "H1! my f3llow 3recti1e dy5funcktion Fr@nds!" to your 100,000 of your closest personal buddies?

Could it be that the reporter publishes his/her email on the newspaper's/TV station's/Blog's masthead/screen/website, with the intention that reader/listeners/viewers should contact them, some even using wording like <announcer voice>"If you have a story idea, contact the Action 10 News Team at action10@example.com"</announcer voice>? That even if they didn't, it's reasonable to assume that a reporter might welcome a news story tip sent to their professional email address*, and that "100,000 of your closest personal buddies" aren't asking to receive erectile dysfunction ads, especially since you've gone to great lengths to evade filtering? That a whistle blower email fails the "commerical" portion of the "unsolicited commercial email", while a Viagra ad doesn't?

*I'd agree that sending news features to a reporters private/personal/family email address may be out of bounds.

Re:Clueless judges

[ultranova]

Yeah... that'll happen. You see, if lawers stopped doing that, then we won't need lawers to protect us from that. I'm sure an entire line of work would admit they are their own problem.

The rule of law requires laws to be written in precise enough manner that there is no room for interpretation. Doing so requires you to define each term and corner case exactly, which in turn makes law so complex it requires a professional to understand it. The alternative is that judges judge based on their own interpretations, which are ultimately arbitrary.

In a way, I guess you could consider lawmaking as programming the society. It's easy to get the gist of it right, but when your code needs to deal with all the possible bizarre corner case inputs (cases), it slowly but surely turns into a potful of spaghetti.

Re:Clueless judges

[Anonymous Coward]

The most obvious difference is in volume. You might send such a message to one, maybe as many as five, reporters.

You probably wouldn't use special ISPs, bot nets, and forged headers to send it to millions of recipients.

Spam ?

[Anonymous Coward]

I like it fried in Raman pride noodles.

Bad analogy

[R2.0]

If Publius sent the Federalist Papers via email to hundreds of thousands of people, it would BE spam. The Federalist papers were items that people VOLUNTARILY sought out - they weren't shoved into everyones mailboxes and under their door thresholds. If they were, they would have been ignored and thrown away just like junk mail is today.

Political freedom of expression is protected; what isn't protected is having ANYTHING shoved down my throat using my own resources.

Re:Bad analogy

[VeNoM0619]

You walk through the street, someone shoves a petition in your face. Do you lock them up as well?

As much as we hate it, there is no fine line of liberties... we may be a "free" country, but not entirely free.

We try to define "freedom until you harm others", but seeing how much more of babies we've become (with less violence, wars, etc.), we see minor things "cause us (mental) harm" and try to justify that.

I hate spam just as much as anyone else, but they should have the freedom to send me it, since I am not physically harmed.

Oh and for those "give us your e-mail then!" people, its my username at hotmail. Good luck cause I last checked it a week ago, the 2nd to last time I checked was 6 months ago.

Just funny, cause back in the day, all drugs were legal, cause you weren't physically harming someone (stabbing etc.). Now it's justified with "you might harm someone if you abuse it" so they removed it entirely to prevent the chance for abuse. I'm not for or against drugs - just an example of how freedom is a slippery slope that can never be truly solved.

Re:Bad analogy

[rhsanborn]

Your freedom ends when you impose on me without my permission. I don't think "harm" needs to be reached for your freedom to end.

People who send me spam, have done so without my consent, and they are causing me undo effort as a result.

I think a better analogy would be someone trespassing on your lawn and running around your house insisting you (sign petition/hear about candidate X/order viagra).

Re:Bad analogy

[R2.0]

If someone is holding out a piece of paper for me to take, I can say "no thanks"

If someone is shoving that piece of paper in my pocket, and doing the same to THOUSANDS of others simultaneously, he would be arrested for assault.

That's the problem - there IS no "real world" analogy that fits properly. The problem, in this case, is that handbilling is an even poorer analogy than most. Junk mail would be a better analogy, except for the fact that the costs are paid by the mailers, not the recipient. Probably the best analogy would be telemarketing calls to cellphones, where the user pays for a call that they don't want. Oh, wait - that's ILLEGAL.

And don't say that it doesn't cost the recipient anything. I pay for my connection, and that money goes to a number of different people to pay for bandwith, among other things. If spam were gone, bandwidth needs would lessen and my rates would decrease. So I AM paying for spam, just not directly.

Re:Bad analogy

[Red Flayer]

The Federalist papers were items that people VOLUNTARILY sought out - they weren't shoved into everyones mailboxes and under their door thresholds.

[CITATION NEEDED]

The federalist papers were originally published in three New York newspapers, then later paublished in other local papers, eventually across the Western World. If someone purchased the newspaper for a different purpose, that person still got 'spammed' with the Federalist Papers in their newspaper. While the analogy is tenuous, receiving unsolicited emails, sent for the same reasons as the publishing of the Federalist Papers, is similar to having them appear in newspapers. In neither case would the content be directly solicited.

For sake of argument, one could say that the way to opt out of spam emails would be to opt out of email. This would be similar to choosing not to purchase a newspaper.

Political freedom of expression is protected; what isn't protected is having ANYTHING shoved down my throat using my own resources.

By extension, you should never have to see an advertisement. After all, it is something shoved down your throat using your own resources. Would you support legislation to ban all advertisement?

Re:Bad analogy

[schwaang]

Political freedom of expression is protected; what isn't protected is having ANYTHING shoved down my throat using my own resources.

In that sense it's spam when a politician knocks on your door, but that's never going to be illegal. (So get rich and buy a gate and dog.)

This particular legal ruling is saying a law can't make it illegal to *be anonymous* by using a fictitious internet identity ("publius.com").

Maybe a better crafted law could still protect you from most spam in the way that we don't have as much to worry about from telemarketers and direct snail-mail.

Re:Bad analogy

[R2.0]

"In that sense it's spam when a politician knocks on your door, but that's never going to be illegal. (So get rich and buy a gate and dog.)"

Sure about that? Because the analogy doesn't hold - a politician knocking on my door is identifying himself. If some guy knocks on my door, claims to be Barack Obama but is a fat, short, white girl, and KEEPS ON knocking over and over again, she'd be arrested. Hell, in some states she'd be shot - legally, since it's not too far a leap to suppose that anyone posing as someone else and not leaving you alone means you harm.

Re:Bad analogy

[schwaang]

I'm pointing out that there are two separate issues - the anonymity (which is rightfully protected for political uses) and the use of your resources.

You were complaining about the resource issue, but this judgement doesn't deal with that. Why? Because protecting political speech mostly wins over the resource issue. That's why telemarketing is mostly illegal, but political robo-calls aren't.

Now, this guy *is* a spammer and he should hang buy his thumbs. But *this* particular law can't stand if it makes legitimate political speech illegal. So write a better law.

Re:Bad analogy

[R2.0]

"Because protecting political speech mostly wins over the resource issue. That's why telemarketing is mostly illegal, but political robo-calls aren't."

Not exactly. For instance on cellphones, where *I* pay for the call, I believe it IS illegal.

You CANNOT force people to support a political cause with their own resources - I believe there is caselaw regarding this regarding using union dues for political purposes.

Re:Bad analogy

[Kingrames]

The emails, I don't mind, so long as the spammer induces a cost for them, and pays it himself. It's when they hire a botnet, or start installing illegal software on people's computers without their consent, that I object. And spammers should be jailed for THAT. Not for exercising speech or being anonymous.

Re:Bad analogy

[Anonymous Coward]

Actually there is a perfect analogy. You are not allowed to go around your neighborhood and put fliers in mailboxes. You will get arrested. Same with "e-mailboxes" (or some other dumbed down term).

Re:Bad analogy

[Trailer Trash]

Junk mail would be a better analogy, except for the fact that the costs are paid by the mailers, not the recipient.

The only reason junk mail isn't analogous is because there is a reasonable amount required to send it. On my end, there is a cost to getting rid of it, but due to it being limited by the cost of sending, my cost of getting rid of it is low enough to not matter (to me).

If junk mail was free to create/send (or close enough to free to not matter) and I received 11,000 pieces each day (my spam average), along with my normal 2 or 3 pieces of legitimate mail, there would be a cost to me, both the time to find my actual mail and the cost to get rid of 500lbs. of paper.

Re:Bad analogy

[Kleen13]

"If spam were gone, bandwidth needs would lessen and my rates would decrease." Telus exec's are laughing their asses off right now reading that. All joking aside, I agree with you.

Re:Bad analogy

[schwaang]

Not exactly. For instance on cellphones, where *I* pay for the call, I believe it IS illegal.

Probably so -- every right is a matter of balance. Cell phone costs are too much to bear for political speech. But we're talking about email, and that's a lot more like your landline than your cellphone. It will be interesting to see bandwidth caps make this argument more tenable.

You CANNOT force people to support a political cause with their own resources - I believe there is caselaw regarding this regarding using union dues for political purposes.

I'm not sure if you're trolling with this one, it just doesn't apply. Obviously you're re-enforcing the argument that it costs you something to receive an email like it costs to receive a cell call. So far, I come down on the other side w.r.t. to political speech, and on your side w.r.t. UCE. We'll have to wait for some other court to rule on that one though.

Re:Bad analogy

[Anonymous Coward]

Not physically harmed? You don't mind if I kick your door in and run off with your wallet while you sleep as long as I don't hurt anyone do you?

Because SPAM *is* theft. I'm in a small office, and have had to spend over $500 on a spam filtering system just so people could use their email. And that doesn't counter other obstacles...

While building a system to process SMS converted to email, I had to spend additional time and overhead parsing the messages to filter out spam, and design the system to reject extra connections to avoid being a DoS. Given this was part of an automated system, they did not have a right to talk to it--but that didn't stop them.

One day last May, our server got joe-jobbed, and for *TWO DAYS* our office DSL was effectively down because of the sheer volume of bounce messages coming in. Of course, that meant our email went down to...and then the volume took off our backup server and the poor company we were co-hosting it with.

Oh sure...I had set up SPF (Two more days counting time it took me to research), but not everybody checks it.

I'm sorry, spammers have cost my company well over $2k in raw resources this year alone, and that *isn't* counting billable hours taken away from something else to deal with them--and we're just a small office.

You've got a right to speak--but not to force me to pay for it. No drop raindrop thinks it's responsible for the flood--but they should all be held accountable anyway.

Re:Bad analogy

[roguetrick]

I think a better analogy would be someone trespassing on your lawn and running around your house insisting you (sign petition/hear about candidate X/order viagra).

I get it, I get it. This is your internet and we'll get off your lawn.

Re:Bad analogy

[Anonymous Coward]

My mail server gets 10,000 spams PER HOUR, while I only get about one legitimate mail message per hour.

If you would be accosted by 10,000 petitioners on the street, per hour (a few million per day!), then I'm sure that you would be mad as hell and would be buying a heavy machine gun or two.

Re:Bad analogy

[somersault]

I'd say that was much more like vandalism rather than theft. Submerging someone's house under a mountain of junkmail isn't theft, is it? It may be a real pain in the ass for them to clear a path outside/inside, but it's not theft..

Re:Bad analogy

[cpt kangarooski]

That's the problem - there IS no "real world" analogy that fits properly.

Sure there is: door to door solicitation. For someone to come up to your door to sell you something, they have to enter on to your property, and waste your time talking to you. And society has deemed this to be acceptable. The onus is on you, the person who does not want solicitors at all, to make his wishes known, whether in response to a particular solicitor ("Go away") or to all solicitors in advance (e.g. a "no solicitors" sign, which reasonably puts them on notice).

Telephone solicitation works substantially the same way: telemarketers are using your resources and your time, and you've consented by default by having a phone attached to the public phone network. It's up to you to tell them to not call again, or to let them know in advance (e.g. with the Do-Not-Call list).

Why should email be any different?

No one is forcing messages on to your computer. This is a common misconception, which does not hold true, except in cases of malware. You've willingly opened up your computer to incoming messages from total strangers, by having an email account and no facilities to screen it upstream of you. If you don't want the subset of spam which is protected under the First Amendment (e.g. commercial speech which concerns lawful activity and is not misleading, and where the government lacks a substantial reason to regulate that speech, and where the regulation actually advances its purpose, but is not more extensive than is necessary to do so; look on Wikipedia for the Central Hudson case for more on this issue) then either tell the spammer to not spam you anymore, or let them know in advance via some analog to the Do-Not-Call list.

Spammers who ignore this should be liable in some manner, and spammers who deal with unlawful activity or deception are already in trouble. And spammers ought to be obligated to provide a clear and simple way to accept actual notice that you want them to stop, and should be required to abide by means of constructive notice, such as Do-Not-Spam lists, or other similar measures. That's fine. But spammers who act within the bounds of the First Amendment, and who have not been placed on notice by you, do have a right to send spam to you. You aren't obligated to read it, or save it, or even accept delivery of it, but they can try to send it.

Of course, given that there are plenty of spammers who would ignore even a constitutional law as I've described it, and who are outside of the jurisdiction of anyone who might care to stop them. So frankly, I doubt that any legal measure is really going to be all that useful. If you really want to stop spam, come up with some technical measure which stops spam. Just make sure that it permits unlimited, free email (I'm on some mailing lists), and unsolicited email (I sometimes get potential clients from out of the blue, since someone else has given them my email address, and I don't want to lose any possible business). Get the world to switch to that, and we'll be doing good.

Or better yet, find something important worth bitching about. I despise all advertising, in all formats and media (I filter out text ads, for God's sake, and I'd love to filter out ads in real life, too), but I'd rather have free speech, along with plenty of speech I hate, than have free speech infringed upon, even if society was more civil or orderly as a result. If you'd defend the rights of, say, a Nazi, to go door to door preaching hate to anyone who cares to listen, then defending a spammer ought to be easy. I can't stand either, but the principle is too important to allow my distaste to get in the way.

Re:Bad analogy

[rhsanborn]

Stay on the internet all you like, stay the hell out of my inbox.

Re:Bad analogy

[DriedClexler]

You walk through the street, someone shoves a petition in your face. Do you lock them up as well?

If they literally[1] shove it in my face, yes. If they just reach out as an offering, that doesn't take me any time, money, or tradeable resources. Just a little cognitive effort.

For the Federalist Papers to be analogous to spam, they would have to, not merely mail them to everyone, not merely mail *a lot* to everyone, not merely make the source hard to find, but deliberately deceive about the contents and make them falsely look like the recipient's other important correspondence, in addition to using the recipient's water to wet the seals.

Whatever else you might say about them, the authors of the Federalist Papers had the decency to pick a pseudonym and *stick with it* so at least anyone who saw it could ignore it.

[1] I mean literally literally. As in the original meaning of literally. Oh, you're so clever, aren't you, to figuratively use a term whose entire point is to signify a non-figurative meaning. Congrats on making it impossible to succinctly say you don't want to be taken figuratively.

Re:Bad analogy

[mdmkolbe]

Probably the best analogy would be telemarketing calls to cellphones, where the user pays for a call that they don't want. Oh, wait - that's ILLEGAL.

How do telemarketing laws draw the line of what is telemarketing? Would something similar work for defining spam?

Re:Bad analogy

[shanen]

Hey, why wasn't that comment moderated +5 insightful? Lazy incompetent moderators, eh? Sort of joking, but bad (and anonymous) moderation is the greatest problem of /. and it won't be fixed while morons like "pudge" are gaming the system for their propagandistic purposes.

Anyway, I read all of the comments moderated as funny. Didn't find any that actually were, though it's certainly a ripe topic for humor.

Then I read all of the topics that were moderated as +5 insightful. That's a more difficult evaluation, but I didn't see any that I would actually regard as particularly insightful, either directly or by reference.

Oh, so you want some insight now? Shouldn't you take the log out of your eye first?

I'd have regarded it as insightful if some of the posts considered such deep topics as the nature of anonymity and the abuse of anonymity. For example, a few key questions for discussion (or humorous /. polls):

Is there any need for secrecy in the absence of prior secrecy? (This primarily undercuts such cases as the whistleblower rationale where additional secrecy is being used against currently secret crimes. After all, if the secret criminals did not fear exposure, neither would they care who exposed them.)

What will be the consequences of the data explosion, AKA the surveillance society? (I contend that without some positive government action, the technical trend will mean that personal privacy will soon be non-existent except possibly for a few of the very richest people. The rest of us will be at the mercy of the various companies that "own" our personal data.)

Why do so many people persist in the fantasy that email is free? (The spammers thank you.)

Can a perimeter be built around personal privacy and personal information while we still have any? (Should you own your email address and control the right to who may use it?)

Why can't we shoot spammers? (Only because shooting's too good for 'em?)

Now the punchline of the joke. Why did I waste so much time and mental effort on /.? A mental exercise of the most pointless sort?

Re:Bad analogy

[Anonymous Coward]

u walk through the street, someone shoves a petition in your face. Do you lock them up as well?

I wish. Those jesus freaks are damned annoying

Re:Bad analogy

[celtic_hackr]

Wrong analogy, you walk down the street, someone shoves a petition in your face and picks your pocket at the same time. Do you lock them up? YES!

Or how about, you go to bed at night and when you wake up you discovered someone picked the lock on your door overnight and left a pile of cow dung on your floor. Do you lock them up? Yes, it called criminal trespass.

Or how about this analogy, you have an automatic withdrawal account with the post office to deliver mail from certain people that has postage due on it. Some enterprising individual finds a way to get put on that list and sends you a bunch of letters. Do you lock them up? Yes!

It's important to get the right analogy that includes more than just a single aspect of the issue. SPAM isn't just about freedom of speech, or anonymous speech, but also about fraud and theft of services, and bad faith, and estoppel and ...

Re:Bad analogy

[Phroggy]

I hate spam just as much as anyone else, but they should have the freedom to send me it, since I am not physically harmed.

Sorry, but you don't understand the spam problem. Spammers lie, cheat, and steal. They know we don't want to see their crap, and they continuously find new tricks to get us to see it anyway, despite our best efforts not to. The simple act of publishing a link to VeNoM0619@hotmail.com is going to get you added to a ton of mailing lists automatically, and the spammers will swear you opted in.

The harm isn't physical, but it is not insignificant; I run a very small little e-mail server out of my house which has to block a spam attempt every 45 seconds on average, 24 hours a day. This is a server hosting one domain, which is only used for my friends and family. Most of the machine's RAM is dedicated to running spam-fighting software. Imagine the cost when you scale that up.

If you've only checked your e-mail twice in the last six months, then of course e-mail spam isn't a problem for you, because you don't really use e-mail. Some of us actually use it. A lot. For business communication. We depend on it. Just because you don't, doesn't mean there isn't a problem.

Re:Bad analogy

[hkmwbz]

Why should email be any different?

Because I pay for someone else flooding me with crap.

Or better yet, find something important worth bitching about. ... I'd rather have free speech, along with plenty of speech I hate, than have free speech infringed upon

This is not a free speech issue.

Re:Bad analogy

[mpe]

You walk through the street, someone shoves a petition in your face. Do you lock them up as well?

If it actually ends up touching you then it's likely to be considered "assault"

Re:Bad analogy

[mpe]

Probably the best analogy would be telemarketing calls to cellphones, where the user pays for a call that they don't want. Oh, wait - that's ILLEGAL.

Possibly on top of that calls which were so frequent as to seriously impair the ability of your phone to be a useful communications device. Or something like frequent junk faxes. Though the difference is that with a phone call the person making the call is generally themselves paying at least something for the call, even if it's bundled with their service. Unless they are using someone else's phone lines (e.g. FEMA's).

Re:Bad analogy

[mpe]

Sure there is: door to door solicitation. For someone to come up to your door to sell you something, they have to enter on to your property, and waste your time talking to you. And society has deemed this to be acceptable. The onus is on you, the person who does not want solicitors at all, to make his wishes known, whether in response to a particular solicitor ("Go away") or to all solicitors in advance (e.g. a "no solicitors" sign, which reasonably puts them on notice).

You are also free to waste their time, be rude to them, threaten them, etc, etc.

Telephone solicitation works substantially the same way: telemarketers are using your resources and your time, and you've consented by default by having a phone attached to the public phone network. It's up to you to tell them to not call again, or to let them know in advance (e.g. with the Do-Not-Call list).

You can also waste their time, be abusive to them or take other actions to try and persuade them that bothering you was a bad idea.

Why should email be any different?

Email is different from the former two in that it does not involve any kind of real time dialogue. You can't waste the spammers time by pretending to be interested nor can you tell them to copulate with themselves or attempt to interview them.

Re:Bad analogy

[mpe]

My mail server gets 10,000 spams PER HOUR, while I only get about one legitimate mail message per hour.
If you would be accosted by 10,000 petitioners on the street, per hour (a few million per day!), then I'm sure that you would be mad as hell and would be buying a heavy machine gun or two.

Of course if they acted anything like email spammers they'd all start claiming to be arms dealers after the first couple of days.

Re:Bad analogy

[mpe]

The federalist papers were originally published in three New York newspapers, then later paublished in other local papers, eventually across the Western World.

Thus either the authors paid for them to be published or the news paper editors considered them to be newsworthy.

If someone purchased the newspaper for a different purpose, that person still got 'spammed' with the Federalist Papers in their newspaper.

What proportion of newspaper readers read every article article? Even where the paper is not split into several "volumes"...

Re:Bad analogy

[cpt kangarooski]

Because I pay for someone else flooding me with crap.

You pay to have a telephone, you pay to have a mailing address, you pay to have a house, and you pay (at least in terms of opportunity costs) whenever you talk with solicitors. Email is nothing special in that regard.

This is not a free speech issue.

Commercial speech which regards lawful activity and is not misleading is protected by the First Amendment, according to the Supreme Court in numerous decisions. Not all spam will fall into that category, but at least some might. And non-commercial spam -- political, religious, creative, etc. -- is even more protected. Any anti-spam law is going to have to deal with the fact that that subset of spam is protected free speech.

Re:Bad analogy

[hkmwbz]

You pay to have a telephone, you pay to have a mailing address, you pay to have a house, and you pay (at least in terms of opportunity costs) whenever you talk with solicitors. Email is nothing special in that regard.

E-mail is special because I bear the cost, and because there's no real physical limit as to how many the spammer can send.

Commercial speech which regards lawful activity and is not misleading is protected by the First Amendment, according to the Supreme Court in numerous decisions.

That's great and all, but it's got nothing to do with spam. Free speech does not involve aiming a thousand megaphones at someone's head and blurting out ads, drowning out most other things.

Re:Bad analogy

[cpt kangarooski]

E-mail is special because I bear the cost

First, you're wrong about that. For Alice to send an email to Bob, both bear part of the cost. Alice is not paying for Bob to be on the Internet, and to be able to receive email, but she is paying for herself to be online with the ability to send email. And there may be parts of the network in between that are not paid for by either party, but are available for use, for whatever reason.

So you really only bear the costs to receive email; the spammer is paying the cost of sending it.

Second, no one is forcing you to bear those costs. If you don't like receiving emails, then don't have an email account. You are not obliged to receive unsolicited email, nor to have an email account at all, nor even to be online. You have freely chosen to be online, to have email, and to receive email from anyone, anywhere, on any subject. This includes spam. You didn't need to choose that, but you did. If spam is so upsetting to you, why didn't you get an email account on a network that doesn't allow for spam to begin with?

Just as all people with front doors implicitly permit salespeople to enter onto their property to talk to them, just as all people with mailing addresses implicitly permit people to send them junk mail, just as all people with telephones implicitly permit telemarketers to call them, all people with email implicitly permit spammers to send spam to them.

Of course, none of those people are obligated to be a good audience. A person can refuse to open the door, or slam it shut. A person can throw away junk mail without reading it. A person can screen their phone calls or hang up on them. And a person can whitelist their email, employ spam filters, etc. Permitting people to send is not the same as guaranteeing that you will receive.

And you can rebut that implicit permission to send as well, by means of actual or constructive notice. Actual notice is telling specific people to go away, constructive notice is providing some reasonable means of letting them know before they even try (e.g. "No solicitation" signs, Do-Not-Call lists). Both means are perfectly usable on law-abiding spammers, who are the only spammers that are protected by the law in the first place.

That's great and all, but it's got nothing to do with spam. Free speech does not involve aiming a thousand megaphones at someone's head and blurting out ads, drowning out most other things.

It absolutely does. Try going to Times Square sometime; you've described it perfectly. A marketer who delivers ten thousand different, ordinary, law-abiding commercial leaflets to you each and every day is fully protected by the law. It isn't his problem that you have a hard time coping with them. If you want him to stop, you need only tell him, or otherwise place him on notice, and the law will be on your side. If he's already breaking a constitutional law, or ignores your requests, then by all means seek out legal remedies if they're available (they may not be; I doubt there is a good solution in the law to the problem of spam).

But I have no sympathy for people who are too lazy to take even the simplest action. Especially not when a deeply important issue -- protecting unpopular speech -- is at issue.

Re:Bad analogy

[Anonymous Coward]

"You walk through the street, someone shoves a petition in your face. Do you lock them up as well?"

No, of course not, there's no need for imperial entanglements. What I do if someone thrusts his hand waving a petition in my face as I'm walking minding my own business down a busy street is quickly sidestep, grasp his wrist with my right hand, guide his arm up in the same direction he was moving while snapping his now overextended elbow with my left forearm breaking it, pivot and sweep his back leg hard so that he falls toward the street (and away from other pedestrians who are minding their own business) and into the path of an oncoming bus. While I'm doing this, I'm smiling serenely, breathing in and out, but with my eyes firmly fixed on the guy's partner who was also handing out petitions but who now is curiously, I might add, watching me.

Why? What do you do?

Re:Bad analogy

[lord sibn]

I agree with all but one point -- if spam were to disappear completely (or even mostly), the cost of operating the networks would drop. You assume (I believe falsely) that this savings would be passed on in the form of lower bills to the customers. I have no reason to believe that rates would be reduced -- they've already got their foot in the door, as far as pricing goes, and while it might conceivably cost you marginally less, they would certainly keep a significant portion of these operating costs to pad their accounts.

Re:Bad analogy

[JuggleGeek]

You walk through the street, someone shoves a petition in your face. Do you lock them up as well?

If every time I walked down the street I had 10,000 people shoving a petition in my face, then I'd be all in favor of locking them up. As it is, I get 10,000 emails a day, and have to do some heavy filtering. My ISP has to carry extra traffic that's just going to get thrown away. I sometimes lose legitimate email because anyone who isn't whitelisted is fairly likely to get caught in the filters.

Good luck cause I last checked it a week ago, the 2nd to last time I checked was 6 months ago.

This works out to "I don't really use email enough to matter, and so I don't care if spammers ruin it for everyone else".

Re:Bad analogy

[darkonc]

Door to door solicitation doesn't fit. The relative costs are too even. This is more like running around the neighborhood with a 150db (at 10 feet) speaker system blaring it so loud that it threatens to overwhelm more wanted communications.

There is no other communication method which attempts to deliver it's message whether you want it or not. Most spam is designed to get around filters designed to stop spam. That is, at least implicitly, an indication that the sender recognized that I do not want his message.

Even with television and radio ads, you have to entice the listener with (at lseat vaguely) interesting programming.

Freedom of speech includes the right to listen to (or not) whichever message you want to.

Re:Bad analogy

[cpt kangarooski]

Door to door solicitation doesn't fit. The relative costs are too even.

So? There's nothing wrong with inexpensive one-to-many mediums of communication, regardless of who uses them.

There is no other communication method which attempts to deliver it's message whether you want it or not.

Except for all of them, actually. If I have a telephone, just to name one example, other people implicitly have permission to call me. I am not obligated to have a telephone, or to answer if it rings, or to not screen my calls. But people can certainly call me whether I want them to or not. It is my responsibility to tell them to not call me. I can do this by actual or constructive notice as discussed already elsewhere in the thread.

Email is no different. Someone can send email to me, but only if I chose to have an email account, which I'm not obligated to have. I don't have to accept their email, but I can choose to do so, and most people have the (perhaps bad) habit of automatically allowing anyone to email them. Spammers are not to blame for the enabling decisions of the people they send spam to. No one is hacking into your computer and forcing you to buy the things advertised. No one is forcing you to receive or read the spam. Quit playing the victim.

Spammers who will abide by your notice to them to not spam you in the future, ought to be protected by the law. Spammers who ignore your wishes that you have communicated to them, or who send spam regarding illegal activities or which are deceptive, are the only ones who, merely by spamming, may be unprotected.

Most spam is designed to get around filters designed to stop spam. That is, at least implicitly, an indication that the sender recognized that I do not want his message.

Maybe, but I think, not necessarily. Think about junk mail. It can be sent as a flyer or postcard, with ads clearly on both sides, and you know exactly what it is when you collect your mail. It goes directly from the mail box to the trash can. But there is nothing wrong or illegal about a mail marketer sending an advertisement in a plain, hand-addressed, stamped envelope. It doesn't look like an ad, it looks like a letter. You're more likely to read it, instead of instantly discarding it. But it's still the same junk mail, in the end. I've seen some of these, as well as other semi-camouflaged pieces of junk mail.

If you're just passively filtering ads -- whether junk mail or spam -- then all the sender knows is that he is having a low success rate, and needs to adapt. He hasn't been provided with actual notice that you don't want spam from him, and I think the argument as to constructive notice is iffy. So long as it is isn't deceptive, he isn't obligated to make it easily filterable. Such an obligation might pass constitutional muster, however. Another analogy would be ads in newspapers that are printed so as to look similar to articles in that paper, and thus sneak past the ad filter in your head.

Freedom of speech includes the right to listen to (or not) whichever message you want to.

I absolutely agree, and spam is no threat to this. You do not have to have an email account, receive emails you don't want, or read or save emails you don't want. No spammer in the world can force this to be otherwise. But it behooves recipients of spam to not be so damn indiscriminate as to what emails they are willing to receive, read, and save. When you choose to do look at every damn thing that arrives, don't be surprised when some of it is spam.

Re:Bad analogy

[VeNoM0619]

because you don't really use e-mail. Some of us actually use it. A lot. For business communication. We depend on it. Just because you don't, doesn't mean there isn't a problem.

Actually, for personal use, I have another e-mail (like most other people) that I use. Only people I KNOW have that one :P The business e-mail stand point is understandable, as that can be a little trickier to get around. But I suppose we have blockers for those. I hate spam just as much as anyone, but, it is still their right.

If we outlaw spam, then what's to prevent someone from signing up to a legit business, waiting for an advertisement from the company and then trying to prosecute claiming they were spammed?

Re:Bad analogy

[Phroggy]

If we outlaw spam, then what's to prevent someone from signing up to a legit business, waiting for an advertisement from the company and then trying to prosecute claiming they were spammed?

It's very simple. If you sign up on a company's mailing list, and they send you advertising, then the message they sent was not spam, because it was not unsolicited.

But there's something you've missed. Spam is already outlawed. The CAN-SPAM Act of 2003 was widely criticized (mostly by people who don't know anything about it), but it does provide a clear definition of spam. I'm not saying it's the best definition, but it's clear, and it's a good enough definition for now. What you've described (assuming the company follows a few clearly defined and reasonable requirements) is perfectly legal, while the spam that clogs my inbox is not. If we could somehow get the federal government to actually enforce CAN-SPAM, the situation would improve dramatically. Not go away, of course, but improve. Unfortunately that's not going to happen in the near future.

Useful SPAM?

[mr_nazgul]

I guess the Judges really got a use out of those Viagra e-mails...

Re:Useful SPAM?

[Anonymous Coward]

No, the check cleared. That's all.

Re:Useful SPAM?

[Perf]

No, it's job security.

Problem Solved

[mfh]

the ability to be anonymous was more important than the problem of spam

Because if you are really anonymous, nobody will know you exist and therefore they can't send you spam. Problem solved!

Follow the money.

[Spazntwich]

Spam and junkmail generate too much tax revenue for the governments to ever actually do away with it.

I would not be surprised if we see companies trying to take on the do-not-call list next.

The spammers and phone harassers don't give two fucks about the massive externalities their business models create. It's time to force them to be considered, at which point it may well become clear that the business models themselves aren't viable.

That or drag the motherfuckers into the streets and shoot them.

Re:Follow the money.

[Ethanol-fueled]

Wait - so the legal system will respect the anonymity of spammers, but not anonymity of ordinary citizens(given the numerous privacy-violating "evidence" collections by unlicensed *AA thugs/gov't agencies/etc.)?

Disheartening.

Re:Follow the money.

[Obfuscant]

I would not be surprised if we see companies trying to take on the do-not-call list next.

Why? They just ignore it, use hidden caller id, and play you a recorded message.

If you "press 1" to ask for more information (like "who the HELL ARE YOU?" so you can file an FTC complaint) you've just opted in. If you "press 9" to "opt out", you haven't, but you still don't have either a name or a number so you can't file a complaint.

I get regular calls from "credit service" or something like that, talking about this being the last day to take advantage of some offer that will "lower my rates". (I pay in full each month, I don't really care what my rates are.) When I ask who they are, they hang up. When I press 9 to opt out, I can swear I hear chuckling in the background.

Today I got the same kind of call from Dish Network. They had a caller id number. They used the company name. I reported it faster than you can say "do not call."

As for the poster who claimed that spam doesn't physically harm him, I'll point out this tiny detail. Network access via T-Mobile 3G networks costs $15/Mb (I think it was) for US subscribers while in Germany. That spam message being downloaded costs me money, which I would have been able to spend on food. That's causing physical harm.

That or drag the motherfuckers into the streets and shoot them.

Stone. The victims ought to have a bit more fun than just one or two shots ending the pain. Maybe if you said "shoot them in the extremities, progressively moving toward the heart" I'd agree, but the next scum would get the sentence overturned because has no heart.

Re:Follow the money.

[Spazntwich]

Well apparently we are (or at least I am) trolls for distrusting our governments and wishing they'd extend us the same rights corporations seem to enjoy.

Maybe it's the part about shooting them. Anyone who thinks spammers deserve compassion is a fool, as the spammers would shoot any one of us in the face themselves if it earned them a nickel.

Re:Follow the money.

[Spazntwich]

Hah. You've got a good point there. Why waste resources getting a law repealed when it's so easy to bypass?

As for your spammer punishment, well, are you planning on running for elected office at any point in time? I would be happy to distribute literature with your message of freedom and glorious retribution.

Re:Follow the money.

[Anonymous Coward]

I would be happy to distribute literature with your message of freedom and glorious retribution.

You can send it everyone via email!

Re:Follow the money.

[Obfuscant]

I would be happy to distribute literature with your message of freedom and glorious retribution.

Thanks, but I plan on hiring a telemarketing firm to call up people and play recorded messages at them.

And the message will ask people to vote for my opponents.

Re:Follow the money.

[TheVelvetFlamebait]

Spam and junkmail generate too much tax revenue for the governments to ever actually do away with it.

OK, you have a low opinion of governments, I get that. However, you actually have the wrong low opinion. Politicians (y'know, the people that governments are entirely composed of) are supposed to be concerned with election prospects (and hence making sure they line their own pockets), not revenue. Why would they raise revenue when it'd get them thrown out of office?

anonymous != fraudulent

[khasim]

Agee noted that in order to send an anonymous e-mail, the sender must "enter a false IP address or domain name."

No. That is wrong. You can be anonymous without spoofing IP addresses or faking domain names.

And "the right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment," Agee wrote, citing a 1995 U.S. Supreme Court opinion.

Correct your usage of "anonymous" first and then I might agree with you.

The court noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by Publius would violate the [current Virginia] statute."

Bullshit. You still don't understand "anonymous".

Re:anonymous != fraudulent

[Anonymous Coward]

The judge was not saying anonymous = fraudulent, even apart from his misunderstanding of technology; he was saying that the law was overbroad, such that the situation he described would have been considered illegal under the law. The judge basically said, if the legislature would rewrite this law so that the bad things are explicitly outlawed, then we can move forward with it. I'd rather have judges striking down laws than upholding potentially abusive laws.

Re:anonymous != fraudulent

[mpe]

No. That is wrong. You can be anonymous without spoofing IP addresses or faking domain names.

Also pretending to be a "real" entity is something else entirely from inventing your own alias.

Re:anonymous != fraudulent

[danwesnor]

Spam stops being anonymous the second that contact information is put on it.

Bravo.

[spazdor]

And here we get to a fundamental question about what we want the Net to be. The court was entirely right to balk at deciding this for us.

We can have the right to communicate anonymously over the Net. Or we can have the right not to be contacted by anonymous people. We can't have both.

Re:Bravo.

[Anonymous Coward]

The right to speak freely doesn't imply a right to be heard. And I, for one, do not want to hear from jackasses like Mr. James. I especially don't want him to use my resources - bandwidth, and ultimately, money - to build his Spammy soapbox.

Re:Bravo.

[The Cisco Kid]

You can publish your communication anonymously (pseudo-anonymously, really, since with a proper subpeona, you can be identified) on a website. Those that don't want to be receive your anonymous communication can choose not to visit your website.

Re:Bravo.

[Nuclear Elephant]

Wouldn't agree with this. We live in a society where privacy is protected (I'm talking about 4th amendment privacy); e.g. we have the right to walk down the street anonymously. Our right to remain anonymous ceases to exist once we've committed a crime - say, stolen from a store on that street. We can have both a reasonable expectation of privacy, and a reasonable expectation that those who are stealing [bandwidth and resources] from us are not entitled to same.

Re:Bravo.

[spazdor]

Then why isn't the burden of protecting our inboxes similarly moved to the inbox's owners? If you don't want to hear from every random person out there who thinks you might want to buy some Viagra, you can similarly choose not to use a communication system which could expose you to unsigned, unauthenticated messages.

How do you propose that an anonymous party should inform the world of his website's existence, if he's not allowed to spam anyone about it?

Re:Bravo.

[oh_my_080980980]

Hey jack ass, it's spam not free speech and it wasn't anonymous it was "false identification." They guy entered a false IP address/Domain. He wasn't hiding his true IP address/Domain; which would be anonymous. He was committing fraud. Look it up sometime.

Re:Bravo.

[Kingrames]

I'm Mr. James, you insensitive clod!

Re:Bravo.

[spazdor]

He was committing fraud
Then we don't need anti-spam legislation to put him away, do we smart guy!

Re:Bravo.

[spazdor]

I'm not sure that spamming equates to stealing. By running a mail exchange, or having an inbox which feeds from one, you're offering "free resources" to anyone who cares to take them in order to contact you about something.

What the spammer does is take as many of those resources as he can, because he has found a way to monetize the ability to contact people.

Rather than stealing from a store, imagine a guy stuffing his pockets with complementary ketchup packets or free individually wrapped samples of candy, with the intention of reselling them later.

In order to catch someone doing this in real life, we have to recognize him as the same guy from one ketchup-take to the next. If we want to grant anonymity in cyberspace, we lose that ability; there is simply no difference between one guy sending a million messages and a million guys sending one message each. Granting anonymity means there can't be any such thing as an "only one per person" policy on giving out free stuff.

Anti-Spam Software Writers are from Virginia?

[ilovesymbian]

The only plausible explanation for this ridiculous judgment is maybe that many anti-spam software writers work out of Virginia. The State doesn't want to lose revenue by letting these poor souls go out of business.

Rewrite the law

[Anonymous Coward]

So the law just needs to be rewritten so as to tackle things which are basically not free speech because they are fraud. I think the judge missed out a little on the analogy though because if people "subscribed" to the Federalist Papers then they wouldn't be spam even though they were published anonymously.

Re:Rewrite the law

[idiotnot]

Yep. And Virginia doesn't have co-equal branches of government, so SCVA's ruling here is pretty narrow. The General Assembly will re-tailor the law to address the specific constitutional rights questions raised by the justices, and the law will remain virtually unchanged. It may be as simple as changing a few words, adding a conspiracy or profit element, etc.

Unfortunately, also the way Virginia works, spammers will have free reign in the Commonwealth again until 1 July 2009. :-/

Other laws are still valid

[Anonymous Coward]

It is illegal to sell prescription drug without a prescription. Its also illegal to offer drugs to children in most states. Everyone here needs to call their country District attorney and ask them what they are doing about peddling drugs over the internet. It almost election time and some of them are trying to get elected as a state DA so now is the time to get on their case.

Re:Other laws are still valid

[Anonymous Coward]

keep the politician out of the drugs
operation webtrypt was traumatizing enough

a trypper

Re:Other laws are still valid

[mpe]

It is illegal to sell prescription drug without a prescription. Its also illegal to offer drugs to children in most states.

There may also be restrictions on exactly who can supply such drugs. Both in terms of their qualifications and their location.

Honestly, I can't fault them for this.

[Millennium]

The court is right about one thing: the law is too vague. Fix the law, and then there will be no problem with the courts.

Re:Honestly, I can't fault them for this.

[Anonymous Psychopath]

Similar to the national do-not-call registry for telemarketers, there should be a national do-not-send-UCE registry for email. Then the courts could freely inflict punishment on violators while keeping clear of the First Amendment.

Re:Honestly, I can't fault them for this.

[Rayeth]

I couldn't agree more. The court's opinion here is spot on. It is not the job of the Court System to fix the laws, that is for the legislature of that region. If anything the attorneys who suggested that the law be amended from the bench were the ones at fault here.

Re:Honestly, I can't fault them for this.

[Skapare]

I agree with this. The law is too vague, and approaches the issue in the wrong way.

Consider someone who wants to print up his own political or commercial speech on sheets of paper and distribute them. So he steals a printing press, paper, and ink, do do this. Does his right to free speech prevail over the property rights of the owner of the press, paper, and ink? What if the owner bought these things to carry out his own right of free speech; the owner's right to free speech have now been trampled on by the thief.

Does one's right to free speech allow them to write their message with paint on the windshields of parked cars?

The law needs to focus on property rights. Free speech does need to be preserved, but it is not free as in free beer. We already have property rights laws in place and they may even be good enough now, if these cases get argued in a way to utilize those laws. And however that might not be the case, new laws that would be needed should focus on exactly how we limit free speech now (e.g. you can't steal a printing press).

E-mail has a special issue. The recipient's property is the major element of delivery for e-mail. The sending server only needs to keep one copy of a bulk e-mailed message. Unlike most traditional mailing lists, most spamware actually does avoid queueing duplicate copies per recipient. And the spamware can readily carry out 1000 SMTP connections per process. The recipient server, due to how some mail may need to be handled, usually has to dedicate a whole process to each incoming message. Only if that message has multiple recipients at that location is any duplication advantage gained. Then the message is "queued" in the recipient mailbox until the mailbox owner picks it up to read it.

Property rights are taken by any email that causes an excess number of processes to be initiated. This can result in delays of mail the recipient really wants to get, and possibly a loss in some cases. This is also an infringement on the right of others wanting to exercise their free speech.

Property rights are taken by any email that fills up the mailbox. This usually results in a non-delivery of email, depriving the mailbox owner of mail that may want. This also infringes the free speech rights of those who want to send mail to that recipient (that the recipient is agreeing to allow his property to be used for).

Striking down an anti-spam law that arbitrarily limits speech is actually the correct ruling. The case itself should have been argued on the issues of the property rights of the recipient, the property rights of other recipients sharing the same server, the property rights of the provider of the services, and the free speech rights infringement of other senders that would be exercising that free speech right in agreement with the recipients.

So by striking down that law, the Virginia Supreme Court did not say we have to allow spam through. It merely said that this particular law is not the right way to deal with it.

Re:Honestly, I can't fault them for this.

[mpe]

Consider someone who wants to print up his own political or commercial speech on sheets of paper and distribute them. So he steals a printing press, paper, and ink, do do this.

A closer analogy would be if they were to break into someone else's print shop. Use their printer, paper, ink/toner & envelopes. Then put the result in that person's/company's outgoing mailbag, possibly after using their stamps/franking machine. The subtle difference is that the crook steals the use of someone else's machine.
Physically stealing industrial printing hardware would probably be as hard as physically stealing thousands of computers and their network connections. In both cases it isn't so much that machines are taken but that someone without authority uses them at the expense of the legitimate owner.

Does his right to free speech prevail over the property rights of the owner of the press, paper, and ink? What if the owner bought these things to carry out his own right of free speech; the owner's right to free speech have now been trampled on by the thief.

Should it even matter what the owner intended to use their property for. Their "consumables" have been consumed without permission or compensation, which is likely to be considered "theft". Similarly their machines have been used without permission or compensation...

Does one's right to free speech allow them to write their message with paint on the windshields of parked cars?

Typically it dosn't even when the painter paid for his/her paint... Nor would painting messages on the windows of people's houses and offices.

I defend not what you say...

[gillbates]

but your right to spam everyone with it?!

First Ammendment in action?

Spam is the ideal litmus test for where someone stands on the rights of free speech. It's almost universally objectionable, never warranted, and offensive to just about everyone.

Yet I'm not sure if there's anyone in the ./ crowd who will stick to their free speech principles when such principles inconvenience them personally. Is there anyone here who, upon receiving spam, remarks to themselves, "Ah, yes, free speech is not dead. I'm glad that - although I personally could care less about replica watches or increasing the size of my body parts - that somewhere, someone out there is free to send such materials to my inbox. USA! USA! USA!"

Because it stands to reason that if spammers have no right to send anonymous messages, then neither do you or I. While a lot of people may not like this particular consequence of free speech, it's far more dangerous to do away with the legal protections for anonymous speech.

Re:I defend not what you say...

[chromatic]

First [Amendment] in action?

Fraud, wire fraud, and trespass to chattel are illegal in the US. Are you seriously claiming that laws against all three violate the first amendment?

Re:I defend not what you say...

[Jaysyn]

Replace email with phone call & spammer with telemarketer & marvel at how stupid you sound.

Re:I defend not what you say...

[Timedout]

Sending those messages is of course illegal. The article specifically says that the law covered all spam, fraudulent or not, and that the courts refused to tailor it specifically to fraud. Thus it was thrown out. I don't blame them at all. I wish, however, that they would create laws to deal with malicious spamming, at least to some degree.

Re:I defend not what you say...

[WK2]

You have a valid point. However, I would argue that there is a large difference between expression, abuse, and advertising.

Yet I'm not sure if there's anyone in the ./ crowd who will stick to their free speech principles when such principles inconvenience them personally.

You seem to think that everybody on Slashdot thinks the same about free speech, and that everybody is an extremist. There are limits to everything. I doubt that even our forefathers would have approved of advertising and abuse such as spam and telemarketers. We don't allow people to shout into bullhorns at your house in the middle of the night, nor should we.

Re:I defend not what you say...

[PunkOfLinux]

It's not an issue of free speech, per se. It's an issue of "are they allowed to use OTHER PEOPLE'S RESOURCES to do it". That's what it comes down to. If they want to post it on the web, dandy. But the moment they send that shit to my inbox, filling it needlessly, then it's wrong.

Re:I defend not what you say...

[zarkill]

while you're correct that speech should be protected even if it is universally objectionable, never warranted, and offensive to just about everyone (and most people who really believe in freedom of speech would agree with you), i think the sticking point for spam is that spammers cause other people to unwillingly foot the bill for their publication.

when someone publishes a book, they have to pay to have the book printed and distributed. but when a spammer sends spam, they're not paying those bills, they are passing the cost along to other people against their objections.

using a first amendment defense to spamming is more like stealing someone's printing press, publishing your book with it, and then complaining about being prosecuted for stealing the printing press in the first place.

if it was really only the content of spam that was objectionable, then you're right, any true supporter of free speech would grudgingly accept spam. but there's a question of resources being improperly used, and people losing massive amounts of time and money against their will, all to pass along dubious messages from third parties.

Re:I defend not what you say...

[steelfood]

So is libel and slander. As is yelling "fire" in a crowded theater when there is actually none. Free speech does have limits. In particular, when speech causes harm, it has to be scrutinized closely for validity. And if it is invalid, then it may not be legal after all.

Spam causes harm, and conveys a message that is false in more ways than one. Therefore, it isn't protected by the first amendment. However, maybe the existing law was too broad...

Re:I defend not what you say...

[LanMan04]

Commercial speech does not get 1st amendment protection.

Re:I defend not what you say...

[noidentity]

Freedom of speech ends where private property begins. Spammers cross that line, and spend my money to do so as well.

Re:I defend not what you say...

[The Cisco Kid]

The problem of spam isnt about free speech. Its about transferring the burden of costs associated with the transmission of that speech to its recipients. Buy your *OWN* printing press, and print all you want. The Internet is *NOT* your personal printing press. The Internet is a cooperative network, for *cooperative* intercommunication between individuals and organizations desiring to do so. There is no place for one party abusing that cooperation to force undesired communications, and the costs associated therewith, onto other parties, and the US First Amendment does NOT give you the right to do so.

Re:I defend not what you say...

[hypergreatthing]

Sure. It's not bad because i don't read it. Spam is an overblown problem made for stupid people who go through each and every single one of their emails, or others who download mail to their computer and are charged for it.

Webmail + unlimited internet = no cost to me. Hell, filters do a pretty bang up job. And if you can't tell what's spam and what's not from the subject you're probably not meant to have an email account.

Give me the ability to be anonymous over anything else on the internet.

Re:I defend not what you say...

[InvisblePinkUnicorn]

Yet I'm not sure if there's anyone in the ./ crowd who will stick to their free speech principles when such principles inconvenience them personally.

I will, because I recognize that such an inconvenience is caused not by the existence of spammers (who will always exist) but by the failings of email providers / ISPs to filter the crap. Competition will improve the situation for everyone (except the spammers, of course).

Re:I defend not what you say...

[thedonger]

I doubt that even our forefathers would have approved of advertising and abuse
I was abused by all four of my fathers, you insensitive clod!

Re:I defend not what you say...

[LandDolphin]

You leave your "resource" open to be used. If you don't want random annoyomous poeple to be able to you them, then close off your "resources".

Re:I defend not what you say...

[szquirrel]

Spam is the ideal litmus test for where someone stands on the rights of free speech. It's almost universally objectionable, never warranted, and offensive to just about everyone.

The problem isn't spam, it's fraud.

Unsolicited email with a valid return address that doesn't use text munging or images to evade filters is not objectionable. If you don't want to see it, filtering it is downright trivial. But that email is dwarfed by the vast amounts of untraceable "v1@gr@" spam coming from zombie nets.

Without the fraud it's just email. You're free to send me all the email you want and I'm free to route it all to /dev/null if I want. First amendment satisfied.

Re:I defend not what you say...

[R2.0]

"Webmail + unlimited internet = no cost to me. Hell, filters do a pretty bang up job. And if you can't tell what's spam and what's not from the subject you're probably not meant to have an email account."

I'm guessing you never took an economics course, or read Heinlein. THERE IS NO SUCH THING AS A FREE LUNCH! You ARE paying for it, via the fees you pay for "unlimited" internet. Just because you don't see a line item on your bill for "bandwidth used to process spam" doesn't mean you don't pay for it.

Perhaps it's YOU who aren't meant to have an internet account.

Re:I defend not what you say...

[Anonymous Coward]

We don't allow people to shout into bullhorns at your house in the middle of the night

You should patent that sales method before someone comes along and beats you to it. The people who don't shoot the sales person are probably more likely to buy the product just to get rid of the sales person. It is brilliant.

Re:I defend not what you say...

[Sloppy]

Because it stands to reason that if spammers have no right to send anonymous messages, then neither do you or I.

Spam is not anonymous speech. A spam's "from" header line is not blank. Instead, it contains data that is intended to deceive. Sometimes people even receive spam that appears to be from me, even though I did not send the spam.

Compare these two quotations:

"I am a pedophile." -- anonymous

"I am a pedophile." -- gillbates (106458)

See the difference, gillbates?

Re:I defend not what you say...

[Anonymous Coward]

Don't confuse the right to anonymous free speech with the "right" to use other people's equipment and bandwidth to broadcast your speech. One is a constitutionally protected right, the other is a convenient privilege that may be removed by the owners of said equipment and bandwidth at any time.

You have a right to speak, you do not have a right to do whatever it takes to ensure that you have an audience.

Re:I defend not what you say...

[YrWrstNtmr]

Webmail + unlimited internet = no cost to me.

'unlimited internet is not a universal concept. Many people (Comcast, Cox, etc) have monthly caps. All that spam (filtered or not) counts against your cap.

Re:I defend not what you say...

[Anonymous Coward]

No. Leaving my doors unlocked is not an invitation to come into my house and make yourself a sandwich.

Re:I defend not what you say...

[OrangeCowHide]

If I am selling something door-to-door and I come to your door and you tell me to leave, I must leave your premises or I am committing trespass. I cannot say, "No, wait, now I am 'BlueCowHide'" and try again to make the sale again.

Now, let us suppose I could make an army of robots that attempted to make the sales for me, and of course they speak very poorly, sometimes you aren't sure what they are even selling, and sometimes they lied about anything and just recited random words, and they all lied to you about who they were (some of them even said they were you). And they ignored your requests they leave, and all of your neighbors had a horde of my robots at their doors having the same problems. Would you be saying that I am protecting my first amendment rights because you owned a door where my robots were able to try to contact you?

I am merely curious.

Re:I defend not what you say...

[CrimsonAvenger]

Is there anyone here who, upon receiving spam, remarks to themselves, "Ah, yes, free speech is not dead. I'm glad that - although I personally could care less about replica watches or increasing the size of my body parts - that somewhere, someone out there is free to send such materials to my inbox. USA! USA! USA!"

No, I'm not gladdened by the sight of spam in my inbox. BUT...I'm also not terribly offended by it - I mark it as spam, train my spam filter, and continue without a second thought. It's just not worth getting excited about.

Re:I defend not what you say...

[LandDolphin]

Analogies are bad because they don't translate well. But to answer within your system, I'd place my own robot at the entrance to my property to screen your robots from even reaching my attention. Sure, one or two might get in, but no more then the average pesk that bothers me at my door right now.

Re:I defend not what you say...

[hypergreatthing]

So you own the internets? Damn man, your property must extend like everywhere.

I guess radio is invading your house, better cover your house with tin foil.

Re:I defend not what you say...

[hypergreatthing]

Sucks to be you. Or... wait a second, you don't pay for email sent from you, do you?

You can't have your cake and eat it. If email is free, it's free to spam and do as you please. If you start adding costs, then treat email as a cell phone text message and we'll see how much you love it. Even if the sender only pays, you'd still have to pay just to send emails about. I'll take free anyday of the week.

Re:I defend not what you say...

[Trailer Trash]

Geeze. "Congress shall make no law... abridging the freedom of speech, or of the press...". Is this spammer part of the US government?

When will you people get it through your heads that your "1st amendment rights to free speech" mean that the government can't stop you, not that you have the right to spend my money to express your speech.

I feel like I'm hearing Gomer yelling "citizen's arrest"...

Re:I defend not what you say...

[hypergreatthing]

If i pay for a connection through fios with no set limits.

If i don't use it at all, i still pay the same ammount.

So explain to me economically how i somehow associate bandwidth utilization that one month costs me nothing and the next is used up by spam?

Because last time i checked using bandwidth has a cost of.... (drum roll please) 0!

Maybe that's different for the other poor suckers who don't have a no set bandwidth contract with their isps, not my fault or problem.

Last time i checked even capped bandwidth contracts still have to pay a set ammount if they use up all their bandwidth or not. That would seem to go against your bandwidth costs you're so adamant about. Seems to me your greedy little isps want free lunch and you're paying them for it.

Re:I defend not what you say...

[YrWrstNtmr]

Even if the sender only pays, you'd still have to pay just to send emails about. I'll take free anyday of the week.

Personal bandwidth cap or no, bytes sent in a spam email isn't 'free'.
You may not see it as a line item on your bill, but it ain't free.

Or... wait a second, you don't pay for email sent from you, do you?

sent email counts against your monthly bandwidth cap. So yeah...people DO pay for outgoing email.

Re:I defend not what you say...

[OrangeCowHide]

Actually, my analogy was pretty good, because it translated very well. I was going to recommend you could build a mechanical guard dog that attacked what it considered intruders.

You building and training your mechanical guard dog doesn't mean me designing and deploying my robots to ambush you and your neighbors is a protected "free speech". I shouldn't be allowed to harass you endlessly and say "You had no right to know who I was; therefore, you shouldn't be able to know that I knew you told me not to trespass," as a legal defense.

Re:I defend not what you say...

[LandDolphin]

I don't thin kit translated too well because your talking about robots coming up to the door of your house versus electonics messages comming into an email inbox. Large differences there. A better analogy might be to compare sending you junk mail via snail mail vs. sending you junk mail via email. Even then there are differences that make any analogy poor.

Re:I defend not what you say...

[Anonymous Coward]

Is there anyone here who, upon receiving spam, remarks to themselves, "Ah, yes, free speech is not dead. I'm glad that - although I personally could care less about replica watches or increasing the size of my body parts - that somewhere, someone out there is free to send such materials to my inbox. USA! USA! USA!"

Well I certainly agree with you about this being an important first amendment issue.
 
But, c'mon, who doesn't want bigger body parts? Male Enhancement

Re:I defend not what you say...

[chromatic]

A better analogy might be to compare sending you junk mail via snail mail vs. sending you junk mail via email. Even then there are differences that make any analogy poor.

... such as the fact that recipients have to pay to receive junk email, while senders have to pay to send junk physical mail.

Re:I defend not what you say...

[BlueStrat]

If i pay for a connection through fios with no set limits.

If i don't use it at all, i still pay the same ammount.

So explain to me economically how i somehow associate bandwidth utilization that one month costs me nothing and the next is used up by spam?

Because last time i checked using bandwidth has a cost of.... (drum roll please) 0!

Maybe that's different for the other poor suckers who don't have a no set bandwidth contract with their isps, not my fault or problem.

Last time i checked even capped bandwidth contracts still have to pay a set ammount if they use up all their bandwidth or not. That would seem to go against your bandwidth costs you're so adamant about. Seems to me your greedy little isps want free lunch and you're paying them for it.

This is wrong on so many levels, I'm not sure if you're trolling or where to even begin pointing out the flaws here.

Let's just look at the internet and the resources used to send and receive data...bandwidth, hardware, etc. Hundreds of millions of spam e-mails are sent daily. This means that in addition to the bandwidth and hardware costs to ISPs to carry normal legit traffic, there's the massive additional costs in hardware and bandwidth requirements for all the spam.

Who pays for that? You can be sure that the ISPs don't simply eat the cost. It's *passed along* to you and I _regardless_ of the particular contract one may have with the ISP. That flat rate you pay _includes_ the costs of spam, although it's not listed separately. All that additional traffic also slows speeds and limits bandwidth available to legitimate subscribers.

If the ISPs write off some of the costs against their taxes, that just costs every other taxpayer more, either in increased tax burdens or reduced services.

TANSTAFL

Cheers!

Strat

Re:I defend not what you say...

[tompaulco]

Must suck that your time isn't worth anything.

Re:I defend not what you say...

[PunkOfLinux]

But there's a flaw with that - you're still spending *your* resources to keep it at bay; either you're spending your time (answering the door) or money (building a 'guard').

Re:I defend not what you say...

[mpe]

using a first amendment defense to spamming is more like stealing someone's printing press, publishing your book with it,

Using their paper, their ink, their glue/other binding materials together with their electricity to do the printing. Then delivering it using their trucks, powered by their fuel, to people who don't even want it in the first place.

Re:I defend not what you say...

[mpe]

You leave your "resource" open to be used. If you don't want random annoyomous poeple to be able to you them, then close off your "resources".

In which case I assume that either you have a large cage enclosing your house or you would have no problem with anyone visiting and leaving their trash behind :) Fed up with people using your lawn as a toilet then you need a better fence...

Re:I defend not what you say...

[mpe]

Don't confuse the right to anonymous free speech with the "right" to use other people's equipment and bandwidth to broadcast your speech. One is a constitutionally protected right, the other is a convenient privilege that may be removed by the owners of said equipment and bandwidth at any time.

Consider that the methods which spammers use to try and evade spam filters are analogous to climbing over fences and going through locked doors in the physical world. So it isn't even as if they could honestly say they didn't know that they were trespassing on private property.

Wrong.

[khasim]

We can have the right to communicate anonymously over the Net. Or we can have the right not to be contacted by anonymous people. We can't have both.

What part of that concerns sending a million unsolicited \/1agr4 messages?

In your world, is it considered okay to use hire a dozen people with bullhorns to spew political rhetoric around someone's house at midnight?

No?

OMG! They're taking away FReedom of SPEech!!!111

No one said that he could not publish whatever he wants.

The problem is his DELIVERY of it to people who do NOT want it.

Re:Wrong.

[spazdor]

But for people to express in any legally rigorous way that they DO want it, they have to know in advance about its existence, which is something an anonymous party just can't get without contacting some people who might not want to hear from him. ...to hire a dozen people with bullhorns to spew political rhetoric around someone's house at midnight?

No, but the trivial real-space rules take care of that scenario nicely. Zoning and noise regulations are enough to keep their activities to daylight hours, and it's not clear to me that hiring a dozen soapbox preachers is particularly illegal if they observe the other laws around them.

It sounds to me like to you, the difference between anonymous communication and spam is volume. One unsolicited letter without a return address is potentially a bona fide attempt at anonymous communication, whereas a million is just a pattern of harassment. But to distinguish between these two situations requires some way for us to say "these two letters came from the same source". Insofar as that condition is granted, anonymity is weakened.

I'm not saying that this is necessarily a bad thing. But it is a have-the-cake/eat-the-cake problem, and we really ought to explore it before it comes to the courts.

Re:Wrong.

[InvisblePinkUnicorn]

How did you get those Viagra messages? Your email provider delivered them to you. If you don't like what they're delivering to you, find one that is better at filtering spam.

Market victory ensues.

Re:Wrong.

[rhsanborn]

But for people to express in any legally rigorous way that they DO want it, they have to know in advance about its existence

That doesn't mean that they have a RIGHT to get it to me, once or one hundred times. Just because it's awfully inconvenient for them to get their message out if restricted to channels where people are complicit in receiving those messages, doesn't mean they should be granted some right to hoist their message on people who haven't asked for it.

Re:Wrong.

[spazdor]

You're got the right approach to this issue; If you want it to be hard for anonymous parties to get in touch with you, there are lots of good ways to make that happen.

If instead you want it to be hard for people who are selling stuff to contact you, but easy for people who just want to talk you into a date, then you face a technical challenge, and not even an insoluble one.

Re:Wrong.

[InvisblePinkUnicorn]

Who are these people picking up complete strangers who don't even know their age or sex online? Simply tell them to put a special codeword in the email and have your provider whitelist that word.

Re:Wrong.

[SL Baur]

is it considered okay to use hire a dozen people with bullhorns to spew political rhetoric around someone's house at midnight?

s/at midnight/before dawn/

Yes, that's standard political campaigning where I live.

The problem is his DELIVERY of it to people who do NOT want it.

No. That is as misguided a statement as the law that was struck down. The problem is economic - the economics of email, where all the costs are borne by the recipient, are broken and encourage spamming.

I get a lot of email I do NOT want that is not spam.

I have a big problem with geographics-based laws being applied to the internet. My email goes to a mail server in Virginia. I work in California and live in the Philippines. What jurisdiction applies to me in an anti-spam law?

I also have a problem with any law that curbs legitimate usage of something, in this case anonymity, to the detriment of law-abiding people. The solution to email spam is very simple. Attach electronic postage to each email message payable to the recipient, drop any message without attached payment. Spam problem solved.

Re:Wrong.

[mpe]

In your world, is it considered okay to use hire a dozen people with bullhorns to spew political rhetoric around someone's house at midnight?

In the real world such people would typically get told to shut up followed by being separated from their bullhorns by angry (and sleep deprived) residents. Though in some places the second step might involve automatic weapons fire followed by silence.

Re:Wrong.

[mpe]

If instead you want it to be hard for people who are selling stuff to contact you, but easy for people who just want to talk you into a date, then you face a technical challenge, and not even an insoluble one.

How often does anyone telephone or email someone at random for a date? Most typically this happens in response to the person being contacted having placed some sort of advertisment. Thus soliciting such contact. No doubt the very few people who would do this are apt to be locked up as "insane".
It's the former group who tend to make completly unsolicited phone calls and send completly unsolicited emails. In the process also doing things which are legally questionably or even illegal.
On the other hand there are plenty of businesses who do fine by putting out public advertisments and having customers come to them.

Re:Wrong.

[mpe]

I have a big problem with geographics-based laws being applied to the internet. My email goes to a mail server in Virginia. I work in California and live in the Philippines. What jurisdiction applies to me in an anti-spam law?

Since you probably spend a lot of time commuting which country's flag is on the plane you usually use and what is your citizenship?

Re:Wrong.

[spazdor]

I agree entirely.

Our solution should not be that unsolicited email is illegal, nor should it impose some arbitrary "intent" fuzzy line where sending 500 is okay but 5000 isn't, or emailing strangers to ask them for cooking advice is legal but offering them shitty pharmaceuticals isn't, or anything like that.

We simply need to drop SMTP as a communications medium, or else expand upon it, because it does not have the characteristics we want.

Mod Parent Up

[mpapet]

The rest of the posts missed this entirely. The court was right here too...

And when the state suggested that the court merely tailor a restriction to the law within its opinion, the court declined.

Courts more or less interpret laws and process law breakers. Changes in the law are supposed to come from legislation, not the bench.

Re:Mod Parent Up

[Anonymous Coward]

For lower courts yes, but higher courts are suppose to evaluate the validity of the law also. It's part of the balance.

Re:Mod Parent Up

[joeytmann]

Or how the law is applied, and obviously they are applying it in a way that is more forgiving for spammers. I agree with the parent, if the law sucks, change the law.

Re:Mod Parent Up

[Anonymous Coward]

Mod parent back down...

The court was incorrect, because the prime prerequisite under the law was unsolicited bulk e-mailing. That act should not be considered as constitutionally protected speech.

Something to consider, too: under the court's opinion, CAN-SPAM is also unconstitutional.

Re:Mod Parent Up

[Anonymous Coward]

There is a large body of English case law in common law systems which would disagree with you.

In perspective: Text messaging

[Anonymous Coward]

Imagine if spammers sent you hundreds of text messages to your cell phone every day. Imagine you do not have unlimited text messaging. Lets say each message costs you $0.10 or so. People would be up in arms (hence why we don't see spammers doing this).

Your free speech ends where my money begins. Using my bandwidth and my energy costs me money, you have no freedom of speech there, it's not a public resource.

Re:In perspective: Text messaging

[elbowboy]

Why wait to imagine, didn't you hear the senate is investigating text message costs in an attempt to get them lowered so we can all have more protected "free speech" in the form of spam text messages.

Re:In perspective: Text messaging

[Anonymous Coward]

Your free speech ends where my money begins.

King George, is that you ?

Pornography isn't protected speech?

[pembo13]

Is this true? What exempts it?

Re:Pornography isn't protected speech?

[Anonymous Coward]

"What exempts it?"

That shame inducing disturbing tingling sensation somewhere deep within those black robes.

Re:Pornography isn't protected speech?

[Anonymous Coward]

It's true, the courts have long decided that Pornography is not protected speech. It is considered to be of no societal redeeming value.

Hence: If I stand on a street corner with a poster that says "Impeach Bush" I'm protected by the First Amendment. If I stand on a street corner with a poster of a naked human I'm going to jail for offending the community.

There are many types of speech that have been ruled to be outside of the protection of the First Amendment. Anything intended to be harmful is generally unprotected. That includes verbal threats, urging someone to commit violence, fraudulent claims, slander, etc.

The most interesting part (and it may have been covered here before) is that something like porn can become protected if it becomes valuable to society. For example, you could display the statue of David publicly, because that's got redeeming qualities. The court generally doesn't think the same about playboy playmates though. Obviously it's a fuzzy line.

Re:Pornography isn't protected speech?

[Entropy98]

Is this true? What exempts it?

Jesus!

Well kinda, some puritans still live among us, actually a lot of them do.

An outright ban on pornography probably (hopefully) wouldn't pass today (although some groups are trying to ban porn), some porn related laws have even been struck down by the courts.
--
Project Powder

To Review . . .

[mmell]

Spoof your telephone number (DNIS) to make soliciting calls - highly illegal.

Spoof your domain name/IP address to send soliciting emails - ?
Fail to identify yourself in any meaningful way when sending soliciting mail - perfectly legal.

So - in terms of our ability to cope with technology - our mastery of the internet as a society is somewhere between our understanding of postal mail and the telephone.

Sorry - I know there's a joke in there somewhere, but I'm running on empty. Write your own joke.

link to opinion

[arbitraryaardvark]

The court did the right thing.
I submitted an article back in May about this case.
http://yro.slashdot.org/article.pl?sid=08/05/02/1910219
The court's decision is here in pdf:
http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf

Spam is bad - personally I use gmail and rarely see spam. But it's hard to write a statute that bans spam and doesn't ban slashdot and the internet in general.
Most of the anti-spam statutes out there are unconstitutional. Yay Va. Off to read the opinion.

above post is informative, flamebait.

like from the 90's?

[Anonymous Coward]

Spam? Like that stuff from the 90's?

seriously, who gets spam any more? I use my addr for online shopping from trusted places like newegg, and to get email from friends. Anything risky, use a dropbox. I've been spam free for 10+ years.

ok, a few ppl have to publish their addr on a web page, but 90% of us don't need to get a single spam, ever.

It's a 90's problem. Not worth spending time on.

Federalist Papers...

[msauve]

Is the Court truely so clueless ("were the 'Federalist Papers' just being published today via e-mail, that transmission by Publius would violate the [current Virginia] statute.")?

The Federalist Papers were never forced upon unwanting recipients who had to pay for their receipt, they were made available to those who wanted to read them. There was choice involved.

The Federalist Papers were originally published in newspapers, so there's absolutely no parallel to spam. In modern terms, it would be a better comparison to blogs or websites. That can be done anonymously.

Big FAIL for the Court.

So...

[Darkness404]

So wait, I can send mail anonymously to random people that is commercial in nature. Yet I can't break DRM to play some video files in Linux or OS X, nor make backups. Not to mention that I can't download copyrighted stuff even for non profit use.

So much for Government for the people and by the people.

Free speech...

[msauve]

doesn't mean that you can force your speech upon me. That's what spam does. Even if it's non-commercial, you have no right to send me anonymous email, unless I've specifically said or implied I want such - such as by "opting in" to a list server or publishing my email address on a website with an open invitation to send me email.

Oh my! I do enjoy the hypocrisy here.

[MarkvW]

The First Amendment protects everybody--including spammers.

If I thought our republic was in danger, I'd spam everybody in an attempt to rouse them to protect it. That would be core protected First Amendment political speech. The GOVERNMENT should not be able to stop me--especially since I'd probably be rousing people to oust incumbents. To those who would authorize my government to shut such speech down, I despise what they say, but I would defend their right to say it with my life. But enough of that, I'd only be spamming such idiots out of necessity.

If spam that is core-protected First Amendment speech can be shut down by the government simply because it is shipped out anonymously and in bulk, then something is WAY wrong because the baby (important political speech) is being thrown out with the bathwater (vile spam). Political speech is too important to be trusted to the discretion of our elected officials.

This doesn't preclude laws prohibiting spamming in violation of a "do not spam" list. It doesn't preclude laws barring fraudulent or misleading spamming. It also doesn't prohibit private servers from refusing to store or deliver spam.

Telemarketers, bulk mail distributors, and spammers, suck. But deal with them lawfully--there are legal tools available.

Their First Amendment protection is YOUR First Amendment protection.

What did drive the change in position?

[dcooper_db9]

I gather that Time Warner is planning to spin off AOL. America Online was based in Northern Virginia until they merged with Time Warner. The corporation moved it's headquarters to New York City but maintained a significant operation at the Virginia site. The state law regulating SPAM was crafted with significant input and support from AOL executives. Could this be part of a campaign to apply pressure or to retaliate for Time Warner's decision to sell?

You may need a login to read this Washington Post article:
http://www.washingtonpost.com/wp-dyn/content/article/2008/08/18/AR2008081802046.html

Call their country District attorney

[Anonymous Coward]

Actually, I would tell them that it is clear that the American people deserve and desire the right to medicate themselves.

It never suprises how quickly the typical slashdot lefty can be turned into a torches-and-pitchforks fundie when spam is involved. Or anything else they don't like for that matter.

Cell phone rules

[YrWrstNtmr]

Why is this not seen the same as cellphone spam(telemarketers)?

They cannot legally call, because it would incur a cost to the individual. Given bandwidth caps, each and every spam email takes a bite out of my monthly payment to my ISP.

Anonymous or not, we pay directly out of our pockets to get this crap.
And if some 'spam' caused me to go over my monthly cap (slower service or extra payments), someone gets a kneecapping. Followed by a trial.

Good. Anonymous can still have his day!

[Ortega-Starfire]

For they are legion. And legal.

If not spam, then wire fraud?

[squidguy]

Ok, so if this ass gets away with spam because of this ruling, isn't he potentially still guilty of committing wire fraud? If not for the false crap he was pitching, then because he allegedly forged IP and email addresses?

Re:Wrong modding

[Harmonious Botch]

Why is parent modded 'troll'? His post is on-topic, and makes a important distinction in the last line. Ok, maybe the 'OMG' line is a tad sarcastic, but he is making a point.
Someone please mod him back up.

Nail it to a telephone pole.

[khasim]

Why should snail mail be the only method for anonymous messages?

Why do you believe that it is the only method?

You can nail it to a telephone pole.

You can print it and leave it at bus stops.

People have even nailed things to church doors.

What is it about this subject that makes people turn off their brains?

Re:Nail it to a telephone pole.

[ribit]

I don't.

Email is not publishing

[wcrowe]

That's just wrong. Email is NOT publishing. Comparing email to publishing the Federalist Papers is the kind of argument one would expect from a high school debater.

Re:Email is not publishing

[Anonymous Coward]

... not a Master Debator.

There fixed that for ya!

Re:Email is not publishing

[Anonymous Coward]

E-mail IS publishing...

spam

[Missing_dc]

I'd throw in a first post, but it would just be spam!

Post by First Amendment Expert

[belmolis]

First Amendment expert Eugene Volokh has a post on this decision over at the Volokh Conspiracy.

Re:Oh my! I do enjoy the hypocrisy here.

[YrWrstNtmr]

This doesn't preclude laws prohibiting spamming in violation of a "do not spam" list. It doesn't preclude laws barring fraudulent or misleading spamming. It also doesn't prohibit private servers from refusing to store or deliver spam.
Telemarketers, bulk mail distributors, and spammers, suck. But deal with them lawfully--there are legal tools available.
Their First Amendment protection is YOUR First Amendment protection.

You have the absolute right to say anything you please. You do not have the right to force me to listen to it. Nor pay for the 'privilege'.

The volume is part of it.

[khasim]

"Volume" as in "number of messages".

Which gets back to my other post. It's not "anonymous" when it is "fraudulent". We can protect anonymity but we should be punishing fraud.

If you're sending email to a spamtrap, it's spam.

If you're sending email to a dozen or so individuals who you have PERSONALLY selected based upon some criteria other than you have their email address, then it is probably allowable under "anonymous".

100,000 messages ... fake domains ... spoofed IP addresses ... I don't care what you're sending, it's spam.

Why this is wrong.

[blair1q]

Publius wasn't anonymous. He was only anonymous to THOSE WHO DID NOT KNOW WHO HE WAS.

Someone had to print and distribute the articles Publius wrote.

There is no innate right to be anonymous and carry out vandalism and other crimes. There is an innate right to free speech which should be sufficient to prevent someone from seeking your identity if you are not otherwise committing a crime.

It's easy to ban spam. Just define it without regard to the anonymity issue. I don't want spam from spammers I can identify any more than from anonymous spammers.

Freedom!

[Anonymous Coward]

It was about time something like this happened. I've tried all the penis enlargement methods I've received in my email until now and nothing worked. I really can't wait to try new stuff because these guys have run out of ideas.

Forged headers aren't the problem.

[bcrowell]

I don't understand the point of a law prohibiting forged headers. DomainKeys/DKIM is a perfectly good technological solution to the problem of forged headers. Yahoo and Gmail both sign their outgoing mail with DK, and within the last few months Yahoo has gotten very aggressive about dropping incoming mail into the bitbucket if it doesn't have a DK signature and isn't coming from a domain that's on their whitelist. People running email servers are just going to have to bite the bullet and implement DK, unless they don't mind not having their users be able to send mail to Yahoo accounts.

But even though DK is rapidly bringing us to the point where forged headers are a thing of the past, that won't do a darn thing to end spam. Spammers can just open an account on Gmail, which is rapidly becoming the world'd biggest wellspring of both internet and usenet spam. The real benefit of DK is not that it ends spam, but that it saves organizations that sign their outgoing mail with DK from being blamed for spam that claims to be from them, but isn't.

So given that forged headers aren't the main problem, and forged headers can be fixed without legislation, I think the bar should be set very high for anyone proposing a legislative attack on forged headers. (But it does seem goofy to me to strike down such a law on free speech grounds. When spammers send me spam, they're using my resources without my permission. That's like putting their soapbox on my lawn instead of on the lawn in front of city hall.)

Yes, the law is vague.

[linefeed0]

And to some degree it was dangerously vague. It is not a straw man to be concerned about laws barring anonymity. Plenty of high-level computer policy people have wanted to ban anonymous posting for reasons having nothing to do with spam, or with the cost of transmitting the messages in question. If the reason anonymity were restricted were because of spurious claims anonymous posting helps terrorists, or because politicians didn't like being criticized anonymously, I doubt many here would be defending the law.

Virginia has recently tended to be the kind of place that such technocratic prescriptions, which combine right-wing goals with decidedly non-libertarian means (see also UCITA), take root in the legislature, and I'm glad the court rooted them out.

Another thing to note is that Virginia is not a "blue pencil" state. Contracts in VA cannot be modified by the courts unless there is a clear severability provision which describes what the basic bargaining units of the contract are. Part of the reason for this is that it is for the people who have made the contract, not the court, to decide how the value in the contract balances out when line items are changed. Thus the rule is "when in doubt, throw it out". Whether or not this is the right approach, many states around the country do it this way (and many also don't). This is a law, not a contract, but it is consistent with the "no blue pencil" doctrine for the court to just throw the whole law back to the legislature to fix it rather than trying to rewrite it.

By the way, I'm not a lawyer, I only play one on Slashdot.

Sigh...

[element-o.p.]

Look, I hate spam as much as anyone else, but this conviction needed to be overturned. The law was written very poorly, and could have been interpreted to convict every "Anonymous Coward" here on /. that resides in Virginia.

This is a bad thing , just in case that's not completely obvious.

Should this guy go to jail? Yep. But first, rewrite the law to get it right. Identity theft is and should be illegal. If James sent even one e-mail that misappropriated someone else's e-mail address, then nail him on that charge. If he sent even one e-mail that advertises a business that is fraudulent, then nail him on fraud/conspiracy to commit fraud.

However, the provision in the law that prohibits sending an e-mail anonymously is not and should not be what delineates a legitimate e-mail from a bogus one. If we follow that logic, then any e-mail that doesn't include some narrow variation on first name and last name (first.last@..., firstInitialLastName@...,etc.) could be interpreted as anonymous. This is not a good thing.

Re:Sigh...

[canajin56]

The court defined anonymous as using a spoofed IP address. The decision is that there can be no law prohibiting the spoofing of IP addresses.

I need slashdotters to mod my email spam

[Frankinmerth]

Why can't email spam be modded up or down (with tags!) instead of just killfiled? Works for slashdot posts, the analogy is clear.

Sadly that will not work.

[Medievalist]

Maybe the answer is smarter (sentient/AI?) systems that truly act as your agent.. The current filtering tools seem quite hit and miss..

They are typically 100% effective for the few hours it takes the spammers to fuzz them.

Spammers have gmail accounts, hotmail accounts, etc. etc. and whenever you put a new "sentient/AI" or any other system in place they just hammer their own accounts until something gets through, then they spam everybody with whatever technique worked.

The amount of effort required to break any anti-spam system (except a few forms of permission based, white-list style ones) will always be many orders of magnitude less than the amount of effort required to build such a system. You really can't win with a filtering strategy as long as spamming remains profitable and reasonably risk-free.

People being the way we are, we will probably continue to fail to make spamming unprofitable so we should focus on increasing the risks. I think the CEOs of corporations that harbor and enable spammer botnets should be flogged, tarred and feathered... are you listening Comcast? Rogers? Cox?

Re:Sadly that will not work.

[ribit]

I'm talking about truly intelligent agents.. think the equivalent of hiring an intern to read your email (Would I be optimistic to say most interns could catch 99% of current spam by reading it?) But maybe this is a few years off...

Re:Sadly that will not work.

[KillerBob]

People being the way we are, we will probably continue to fail to make spamming unprofitable so we should focus on increasing the risks. I think the CEOs of corporations that harbor and enable spammer botnets should be flogged, tarred and feathered... are you listening Comcast? Rogers? Cox?

Rogers blocks all traffic on port 25 which doesnn't go to their own internal mail servers, and now requires authentication, even for mail that originates on their own network. They won't relay unless you've specifically tied your reply-to address to your account, by means of creating an alias through their account management portal, and you're limited to a maximum of 8 aliases per e-mail address. They also routinely portscan you and have been known to shut people down for running servers or suspected virus infection.

I don't know about the others you listed, but Rogers has improved their security significantly.

Re:Sadly that will not work.

[KGIII]

Are you saying that you want the ISPs to monitor and filter traffic?

Re:Sadly that will not work.

[ribit]

And then they seem to be assuming everyone will use port 25 to send email, and care about using their relaying?

Re:Sadly that will not work.

[Medievalist]

Well, yeah, the staff at the big ISPs is typically not really competent to run a large network. The pay is too crappy - my employer hires the talented ones away by paying normal industry salaries, and they're not the only ones doing it. Very few major ISP employees have any deep understanding of Internet protocols, and certainly none of their PHBs do.

The irony is that cable companies are too greedy to pay big salaries, and they are competing for workers who can get big salaries elsewhere, so their operations are so poorly run that they are only profitable because they're paying off politicians to obtain regional monopolies, but the cost of buying off politicians is rising now that the regions are mostly already monopolized. In the long run, they'd have all been better off if they'd hired expensive geniuses and played by the rules instead of attempting short-term subversion of the free market. In my area, Verizon FiOS is eating Comcast's lunch, and only because they provide an infinitesimally less horrible alternative.

Re:Sadly that will not work.

[Medievalist]

I'm talking about truly intelligent agents.. think the equivalent of hiring an intern to read your email (Would I be optimistic to say most interns could catch 99% of current spam by reading it?) But maybe this is a few years off...

Hmm, like the average CEO's secretary. One step beyond the gmail/veepul "wisdom of crowds" distributed labor approach which is currently the state of the art.

It still doesn't scale, though, unless you are going to institute slavery. Not everyone can afford to pay a real thinking mind to filter their email, and when you talk about something smart enough to beat spammers you are probably talking about sentient creatures.

It's really really cheap to use genetic algorithms and free email accounts to defeat any non-sentient filtering method. Set up your parameters and forget it until the bell rings, then send 50 million emails out from your botnet. Profit!

Re:Sadly that will not work.

[Medievalist]

Thank you very much for the information; I don't have any way of knowing what Rogers is doing except by looking at the source IPs of incoming malicious traffic (since I'm outside their region) and that doesn't give me a very granular view. I can see that Adelphi, Rogers and AOL are all sourcing less crap these days, but I haven't any way to see how or why that came about.

I think the CEOs of corporations that harbor and enable spammer botnets should be flogged, tarred and feathered... are you listening Comcast? Rogers? Cox?

Rogers blocks all traffic on port 25 which doesnn't go to their own internal mail servers, and now requires authentication, even for mail that originates on their own network.

There's no reason a person should be forced to use their ISP's mail server - that's not the same thing as preventing spamming, it's like shooting someone's entire family to keep their dog from pooping in your yard (a strategy that will work, but it's not worth the collateral damage). On the other hand, it's wonderful that they are requiring SMTP auth, that's perfectly reasonably and significantly better than the approach Comcast is using in my area.

They won't relay unless you've specifically tied your reply-to address to your account, by means of creating an alias through their account management portal, and you're limited to a maximum of 8 aliases per e-mail address.

But restricting the paying customers who are good netizens is degrading the quality of the service without cause. If true competition is ever allowed in the market, ISPs who do this will be outcompeted. I personally am capable of running a mailserver with 100% uptime for a decade without a single outgoing spam (I've done exactly that on four corporate sites) so why should I be forced to use Rogers' relatively unreliable service?

They also routinely portscan you and have been known to shut people down for running servers or suspected virus infection.

Portscanning alone is insufficient to detect viruses, but it's a great first step and I applaud them for it. Unfortunately, the whole purpose of the Internet is to connect servers and users, so shutting down people for running servers is another huge degradation of service for good netizens.

I don't know about the others you listed, but Rogers has improved their security significantly.

It sounds like they are ahead of the pack (certainly much better than ISPs in my area) but it also sounds like they are still failing to identify the true problem and attack it. Are they competent enough to distinguish between me opening a netcat pipe on a random port to a guy who wants to send me some confidential financial data and a spammer who has infected an unpatched PC? They have the hardware to do this trivially - portscanning is great as one small part of a strategy but simply monitoring nameserver usage (for one example) is thousands of times more effective and far less intrusive.

Re:Oh my! I do enjoy the hypocrisy here.

[MarkvW]

I agree with you. It's just that finer-grained tools can debilitate spammers as effectively as coarse-grained tools.

so do what the court said.... change the law

[feepcreature]

I see why the court decided as it did. But why not enact a law which applies similar penalties to unprotected commercial speech?

The problem of spam exists on the scale it does because spammers make a profit from the messages they send, and the victims pay most of the costs of processing the email. There is no US constitutional right to freedom of advertising.

So ban commercial spam, and the greater part of the problem can be tackled.

Best of all, if this slimeball carries on spamming, he can get his 9 years in jail after all.

Re:so do what the court said.... change the law

[arbitraryaardvark]

"There is no US constitutional right to freedom of advertising." You are mistaken.
You are right that an antispam statute that was limited to commercial speech would be more likely to pass the courts than one not so limited.
Generally, the court sees commercial speech as less protected, but not unprotected.
Justice Thomas thinks that commercial speech should be fully protected, and he's right.

http://en.wikipedia.org/wiki/44_Liquormart,_Inc._v._Rhode_Island
http://en.wikipedia.org/wiki/Virginia_State_Pharmacy_Board_v._Virginia_Citizens_Consumer_Council

My earlier post wasn't as informative as I thought - the washpo article had the link to the opinion right there, I just didn't see it.
I've now read the case and agree with it.
There are various things they could have busted Jaynes for, the stolen email list, the scams that were the content of his spam, but the statute they busted him under was void and not a law.

Re:Oh my! I do enjoy the hypocrisy here.

[YrWrstNtmr]

Fine-grained tools can be thwarted. One change to the method, and it no longer applies.

I must also agree with the decision

[rfc1394]

As much as I detest and hate spam, I can find nothing wrong with the decision of the Virginia Supreme Court. I have actually read the decision so I do understand what is being said.

First, the statute does not ban all unauthorized use of the mail servers targeted by the defendant, thus the statute in question is not an 'anti-trespass' ordinance as the Commonwealth would claim. This point, they're correct on, and a statute written that way would essentially make ALL unsolicited e-mail sent to someone illegal unless you had prior permission, the same way you can't just cross someone's land without permission. If you post something on Slashdot or on a usenet news article, and I send you a message to ask you a question either because I liked your article or I disagreed with it, as it would stand, that sort of a message violates the statute and would conceivably be chargeable as trespass (or trespass to chattels) we made all unauthorized use of someone's mail server to either be criminal or an action which could be sued over.

Second, the statute does not differentiate between types of messages that have less (or no) protection, such as pure commercial speech, pornography or obscenity, and a message which might be offensive to others but is neither a commercial nor pornographic nor obscene.

On this point, they're correct too. While the Commonwealth is claiming it would not use the law to target non-commercial speech, there's nothing in the law that says it can't. I am thinking of the 'Jesus is Coming' spam that went out a few years ago that was sent by Clarence Thomas (no, it's someone else, not the U.S. Supreme Court Justice). I for one would go after something like that because that's also spam, however then we do have First Amendment issues.

Third, even if fixing the statute to take some e-mail out would stand muster, the court cannot rewrite the statute, that's the legislature's job. The court could conceivably strike portions of the statute to save its constitutionality, it cannot add to the statute or give it a limiting construction; that would mean the judiciary is legislating, something it isn't supposed to do.

Fourth, there's no fraud, because it didn't matter what the sender address was, the mail system would have accepted it whether it was a real address or a bogus one. Fraud requires someone to rely to their detriment on your false information

There's no way to send e-mail anonymously unless you put something false or misleading into the sender address, thus the First Amendment protection on anonymous communications is violated because it prohibits distributing mail with a false header, and that's the only way you can send anonymous mail. (If you say, 'use a remailer' then the remailer can be subpoenaed and their records checked.)

In short, the law comes up short. I don't like the idea of spam but you can't throw the (constitutional) baby out with the (spam) bathwater.

It get worse

[bill_mcgonigle]

they weren't shoved into everyones mailboxes and under their door thresholds. If they were, they would have been ignored and thrown away just like junk mail is today

Even if they were, they'd just be tossed on the hearth, but the cost would be largely borne by the Federalists.

You have a right to stand on the sidewalk in front of my house saying whatever you want. You don't have a right to come onto my porch, use my paper and pen, and start writing whatever you want under the guise of 'Free Speech', you're consuming my resources and causing me to incur expenses.

Just like when I get an e-mail, I pay for the bandwidth, I pay for the disk space, I pay for those electrons to excite the wires and move the drive heads. But more important than that is my time.

Mass spamming shifts the costs almost entirely to the receiver. What might cost the sender $20 can cost the receivers $200,000. That's why spam is evil.

Re:It get worse

[mpe]

Even if they were, they'd just be tossed on the hearth, but the cost would be largely borne by the Federalists.

In the latter half of the 18th century you might actually want to get such "junk mail". Since it would actually be useful as fuel...

You have a right to stand on the sidewalk in front of my house saying whatever you want. You don't have a right to come onto my porch, use my paper and pen, and start writing whatever you want under the guise of 'Free Speech', you're consuming my resources and causing me to incur expenses.

But you are free to make use of notice boards intended for public use (even if they are actually privatly owned). On the Internet, as in the physical world, someone may allow you access to their property for specific reasons. If someone has a "yard sale" it's still trespass to be on their property before or after that sale. It also dosn't imply that you can bother them with some unrelated matter. Similarly if you employed a plumber you wouldn't expect them to then turn up every week asking if they could do more plumbing. Let alone crowds of construction workers to do this.

Mass spamming shifts the costs almost entirely to the receiver. What might cost the sender $20 can cost the receivers $200,000. That's why spam is evil.

If it even costs them that much. In many cases spammers use other people's machines illegally to send their stuff. This makes them crooks and means that law enforcement should be going after them.

This is a sad day

[Anonymous Coward]

That little prick should be sent to prison for decades. If YOU did it, they'd lock you up and throw away the key.

Re:Oh my! I do enjoy the hypocrisy here.

[MarkvW]

Stalin would have agreed with you! Coarse-grained tools are much more effective.

Add a captcha

[bruce_the_loon]

Be interesting if we could add a captcha to the SMTP conversation, server asks a mathematical formula in bc or rpn notation and client has to send an answer back. That will stop spoofed ip packets since the formula will never reach the client sending the spoofed packet and it will not be able to send the answer. Basically a simple form of IPSEC checking that humans could also use when we debug the SMTP.

Just for anti-spoofing and getting the right IP in the packet.

Let us use our free speech rights.

[140Mandak262Jamuna]

Say, we all send what we think of the opinion handed out by the judges of the Virginia supreme court. Some anonymously and some not. Say, using our own words, no clickable links to russian sites. None of the spam filters used by the court would stop these emails. Now with millions of emails clogging up the inboxes of the judges, they would be finding it difficult to find legitimate emails that they need to see for their business. Do you really think they would rule the same way they did after that? I think these judges have been removed from reality and have not personally used the internet much and have a bevy of assistants and secretaries to handle their correspondence. I would not be surprised if these judges get their email printed by their assistants and submitted to them for their perusal along with regular mail. Till these old coots retire and actual people who grew up with the problem of SPAM rise to be the supreme court judges, we would get such stupid rulings.

Wrong

[Anonymous Coward]

They have erred in assuming that anonymous speech needs to be able to use fraudulent (forged) return addresses. This is not what the first protects. So, on the face of it, we can strike that one. Next, false return addresses, this too need not be protected as the `registration' for those that can engage in anonymous speech isn't the speakers themselves but rather the person or organization that merely provides part of the pseudonym, there is no requirement that they even handle any part of email routing. This requirement doesn't limit anonymous speech as an unlimited number of such places exist. And an arbitrarily many that are outside the reach of any court in this country, and so true for all other places on earth. Because anyone can obtain such an email address under any naming scheme they want for anonymous speech, they are not limited by the requirement. Likewise, an IP address is a requirement that serves much the same purpose. Just because one needs to have an IP address, doesn't limit free speech, and even if it did, that would just mean that email is unsuitable for that form of free speech.

Balance. There is no balance to the peoples right to not be spammed in this courts ruling. The court needs to recognize the people have a right to not be spammed and to petition the state to help solve the problem for them. The form is reasonable, though it places some inconsequential limits on some anonymous speech. The limits are not consequential, as there is a virtually unlimited number of email provides and not all require proof of identification in order to get an account. In the case the court cites as backing for their ruling, the party that wanted to speak had to register with the government in order to speak anonymously. This is wrong, because if only 5 people register directly with the government and 1 to 5 people spoke, the speech cannot be anonymous at that point as they have a list of 5 people that are registered to speak. And, to enforce the requirement of registration, police can ask a person to prove they are registered. Great. This line of reasoning doesn't apply to the email system, as _any_ register domain can be used to send email. Including domains registered in china or north korea or by the russian mob. Further it doesn't apply as almost 100% of non-fraudulent, non-spam email currently is so registered, with a healthy chunk of that being fairly anonymous.

The internet provides blogs and community sites and many other venues for anonymous speech, the stipulation that any particular place need support anonymous speech is flawed. Each such place, or each such protocol, or site should be free to determine wether or not and in what form, anonymous speech can take. We should be free to require anonymous speech requires the use of a valid email address, or use a valid, registered IP address, or not, as we choose. What we should reject, is that every user of email must register all their email addresses with the government and that all persons that provide email be able to prove who exactly uses a given email address, or that an ISP is required to know exactly which person uses an IP address. Those sorts of restrictions truly limit anonymous speech.

So say we all.

Absolutely not.

[Medievalist]

Are you saying that you want the ISPs to monitor and filter traffic?

No, that's exactly the guaranteed-fail strategy they are pursuing.

I want them to use the Internet as designed - identify malefactors (which is trivially easy using their existing equipment) and disconnect them.

ISPs who are too retarded to figure out that this is a huge profit making opportunity (that'd be most of them) should ponder this question: How much would anti-malware vendors pay comcast to have all zombie PCs restricted to a special subnet, where the PC owners would be unable to do anything but visit designated anti-malware sites?

If comcast (for example) eliminated their malicious traffic they'd regain 80% or more of their bandwidth, and they'd have no need to filter anything else.