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Virginia High Court Wrong About IP Addresses
The first 20 pages of the decision, which are all about legal standing, jurisdiction, and overbreadth, made my eyes glaze over. I'm not analyzing those at all except to point out that on most of those issues, the lower court came to exactly the opposite conclusion from that of the Virginia Supreme Court, and there is no reason to think that the higher court is any more likely to be "correct" than the lower court (even granting the assumption that there is an objectively "correct" answer to these questions). Any time you feel intimidated by "experts," it's helpful to step back and ask whether the alleged experts even agree with each other.
Page 21 is where the technical stuff starts that we can tear apart directly. The decision says, in talking about the transmission of e-mail:
The IP address and domain name do not directly identify the sender, but if the IP address or domain name is acquired from a registering organization, a database search of the address or domain name can eventually lead to the contact information on file with the registration organizations. A sender's IP address or domain name which is not registered will not prevent the transmission of the e-mail; however, the identity of the sender may not be discoverable through a database search and use of registration contact information.
These are statements that are only true if you play some kind of parlor game to
find a way to read them as "true," not statements that indicate the court knew
what was going on. To review: IP addresses in the U.S. are generally allocated
by ARIN in blocks to Internet service providers
and Web hosting companies; these
companies then lease the IP addresses to their customers. You can
look up an IP
address with ARIN to determine which ISP or hosting company has been assigned
that particular block, but the ISP or hosting company generally won't tell you
the identity of their customer who has leased it from them. And anybody
can register a domain, but most domain registrars give you the option of registering
the domain anonymously, so that only the registrar knows the owner's true identity.
So the court's statement that a database search "can eventually lead" to contact
information is correct only if you clarify that it "can" lead there, but it usually
won't. As a finding of fact, this is 100% true, and about as useful as "Obama might
win in November. Or he might not."
But it's impossible to defend what the court says next:
As shown by the record, because e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name. Therefore ... registered IP addresses and domain names discoverable through searchable data bases and registration documents "necessarily result[] in a surrender of [the speaker's] anonymity."
Now, there are two possible definitions of "anonymity" to consider: (1) you can be anonymous
to the extent that ordinary citizens reading your content cannot determine your identity
without a subpoena; or (2) you can be anonymous to the extent that even the government,
armed with subpoenas and wiretaps, can never find out who you are. But under either
interpretation of the word, the court's statement that "the only way such a speaker can publish
an anonymous e-mail is to enter a false IP address or domain name," is wrong.
By default, almost all Internet users are already anonymous in the first sense, even without
using forged headers or other tricks in their e-mails. When you send e-mail through your own
Internet service provider's mail server, or when you log on to Hotmail and send messages from
a Hotmail account, or when you lease a dedicated server from a Web hosting company and use it
to send mails, the messages don't contain any more information about your true identity than
you decide to put in them. Only the government could ordinarily discover your identity in those
cases, by looking at the IP address that the message was sent from, and subpoenaing the Internet
service provider or hosting company for the identity of the person using that IP address at that
time.
But there are even ways to be anonymous in the second sense -- such that not even the
government could identify you -- without resorting to forged e-mail headers. You can create
Hotmail and Gmail accounts without giving the providers any of your true information. When
you send messages through those services, they pass along the IP address that you used to
connect to their Web sites, but you can obscure your IP address as well, by using an anonymizing
proxy or a service like Tor.
Elsewhere in their decision, the court indicated that what they really wanted to protect
was the right to send anonymous bulk e-mails that were political or otherwise
non-commercial. But even by that standard, it's still possible to use Hotmail and Gmail
together with an anonymizing proxy (the mail services do
impose limits on how many messages
each account can send in a day, but if you want to send bulk mails badly enough, you can always
sign up for multiple accounts). And if you only care about staying beyond the reach of U.S.
subpoena power, you can always sign up for a dedicated host overseas and send the bulk mails
from there.
Apart from the court's misstatement that forged headers are the only way to publish anonymously
in e-mail, there is the incorrect presumption that forged headers actually do afford
anonymity in either of the senses given above. The court wrote, "[T]he only way such a
speaker can publish an anonymous e-mail is to enter a false IP address or domain name."
But while it is possible to enter any domain you want in your return e-mail address
when you send an e-mail, the court apparently didn't know what it was talking about when it
referred to "entering a false IP address." You can't just "enter" any arbitrary IP address
when sending an e-mail. If user@domain name.com receives an e-mail, the mail server at
domain name.com has to receive the message over a connection made from some other machine,
and the domain name.com mail server can always see the IP address of the machine on the other
end of the connection. Normally, this machine on the other end would be the mail server of
the sender's Internet service provider. Or if the sender has leased a dedicated machine at
a hosting company, that dedicated machine would be the one connecting to the domain name.com
mail server. Some desktop spamming programs let you turn your home computer into the sending
mail server, so that it connects directly with the remote mail server to send the message.
In all of these cases, the receiving mail server can see the IP address of the sending
machine, so a government subpoena would usually be enough to determine the sender's identity.
(I know you all know this, but I have delusions that some helpful clerk will print out this
article and explain this to the judge.)
When spammers "enter" false IP addresses in sending mails, that usually means entering made-up
IP addresses in headers that are sent along with the contents of the message. However, these
would normally only have the effect of throwing someone off the trail who opened the message
sent to user@domain name.com and was reading the headers manually. Perhaps they would see some
random IP addresses scattered in the headers, would go to ARIN and look up the hosting company
or ISP that those IP addresses were assigned to, and would mistakenly file a complaint with
that company. But the domain name.com server can always see the true IP address that the message
was received from, and for people who know how to read the headers properly, that IP address
will be indicated in the headers as the address that connected to the domain name.com mail server
to send the mail.
So the court's statement that "the only way such a speaker can publish an anonymous e-mail is
to enter a false IP address or domain name" is doubly wrong: because it's easy to send e-mails
anonymously without using forged headers, and because forged headers do not in fact provide the
level of anonymity that the court said should be protected anyway. The only way to truly
obscure your identity by hijacking a third-party IP address without permission, would be to
hack into a third party's computer, by infecting a user's home computer with a Trojan horse for
example, and
using it to send mail.
Presumably the court was not contemplating that such an
activity should be considered legal, even as a means of sending political speech.
It would presumably be unconstitutional for an anti-spam law to prohibit anonymous political
e-mails which attempted to hide the sender's identity -- that is after all what
"anonymous" means! You couldn't pass a law outlawing Tor, for example. But the Virginia
law doesn't apply to senders merely trying to hide their identity, it applies only
to the use of computers
"to falsify or forge electronic mail transmission information or other routing
information in any manner in connection with the transmission of unsolicited bulk electronic mail"
(emphasis added). There is a difference between obscuring one's identity (which Tor and anonymous
remailers allow you to do), and actively trying to frame an existing third party by using
forged headers to make the mail appear that it came from somewhere else, especially when
sending bulk mail, which is likely to generate complaints whether it's commercial or not.
By contrast, the
Washington anti-spam law
prohibits any mail which "misrepresents
or obscures" the origin of the message (emphasis added). This is broader and
could be construed to include a wider range of things, such as the use of overseas IP
addresses to send bulk mail on behalf of a U.S. company, or the use of anonymously registered
domains to hide the sender's identity. It would probably be unconstitutional to prohibit
these obscuring techniques for non-commercial anonymous e-mail, which is why the Washington
law specifically applies only to commercial messages.
But here I'm getting into issues like constitutional law where different experts might disagree.
The clear-cut technical fact is that, contrary to the court's ruling, forged e-mail headers do not
provide true anonymity when sending mail, whereas there are other, legal, ways of sending
mail that do make the sender truly anonymous.
What is frustrating about the court's misstatements about IP addresses, domain names,
and anonymity, is that the judge is obviously intelligent and could have understood
the concepts if they had been explained correctly to him. I held some misconceptions
for a long time myself about domain names and IP addresses, because the first explanations
I read were incomplete or wrong, or I didn't understand them.
But the mistakes in the ruling would have been caught if
the judge had just showed a draft to an Internet guru and said, "Hey, can you check if there's
anything wrong here?" I know, I know, that's "just not done" (and there are
probably
formal rules in most states
against showing a draft of a ruling to a third party before publishing it, even if the
third party reviewer is sworn to secrecy, as they should be).
But there's nothing stopping the judge from asking a technical expert during the trial,
"It seems to me that the only way to publish anonymously on the Internet would be to use
forged headers in e-mail. Can you tell me if that's right before I go too far down that
line of reasoning?"
I've appeared before judges in Small Claims court who did ask questions about any part of
the technical issues that they wanted to understand, and were even willing to revise
some prior misconceptions. But all of them, even the open-minded ones, proceed by gathering
information during the trial, and then in the conclusion, spell out their argument and their
ruling (during which time you're not allowed to interrupt), which is then set in stone unless you appeal.
I've never seen a judge say, "Here's the line of
reasoning in my head right now, and my tentative conclusion. Is there anything in that
chain of reasoning that you want to dispute, before I make it final? I am not
promising to change my mind just because you disagree with something. But I will take it
into account." This is essentially what scientists do when they submit their papers for peer review
before publishing them, to minimize the chance of making an error. Judges could do the same thing
-- if not formally, because they're not allowed to show opinions to third parties, then at least
informally, by running their ideas past the experts assembled in their courtroom -- to reduce
the chance of making a mistake. But have you ever heard of a judge doing that?
The Virginia judges probably did about as well as one could be expected to do, having learned
all these technical terms only recently, and then withdrawing to their chambers to form an
argument without any feedback from any technical experts. So, given the technical howlers
that ended up in the ruling, the moral is that forming an argument in isolation from experts
is probably not the right way to go about it.
Man, I was gonna read it, but I clicked and then by the time I scrolled down a bit, and a bit, I was too tired and/or bored to continue.
As much of the issue in this case seemed to involve forged headers, have any of the companies whose domain names were used in a forgery ever tried suing under slander laws?
Build it, and they will come^Hplain.
There was no such decision by the Supreme Court! I staged a man in the middle attack and FOOLED you with my forged headers!
If you aren't prepared to put your name to what you say, then I don't want to hear it.
Tell that to all the Iraq war protesters (when it first started) who had their houses vandalized and were assaulted because of their views.
Or the folks who disagree with their Governments and are being watched, were tortured or killed.
Or how about being an atheist in a theist country and trying to get work - outside of working for Bill Maher.
Just saying.
I think the problem here is that someday you might want to send anonymous mail of a religious or political nature and most would agree that there is merit in that not being illegal. For instance, I've sent anonymous e-mail (well, semi-anonymous, from some generic gmail account) complaining to the Health Dept. that facilities on site were not up to health code, but did not want my employer to be able to deturmine from the public records who made the complaint.
I wish that public key signing of e-mail on a massive system was possible and inexpensive (or free!) and massively adopted so that I could filter out unsigned e-mail. Right now, there isn't truly a lot of flexibility in filtering messages based on identity (or lack of identity), instead all we get are very sophisticated pattern matching methods which work well for most cases. Poorly when you monitor public facing mailboxes on an international scale where Contry-origin and english language "correctness"/buzzword filters are all you get.
Forgive my spelling from time to time. I'm often posting during short breaks.
If you aren't prepared to put your name to what you say, then I don't want to hear it.
Then, you will hear only those things that no one is trying to suppress by intimidation or retaliation.
If you don't have time for anonymous speech, that's fine. However, anonymous speech too often conveys vital information for it to be prohibited for those who want to hear it.
"We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
tl;dr
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> ...which may enable the state to win on appeal.
This is the Virginia state supreme court ruling against Virginia state law. Just who do you think they are going to appeal to?
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
This is the same court system that required a server's RAM to be held as evidence, since it was a data-storage device.
Someone will challenge this, and the State will lose. That's the way the system works.
I want to delete my account but Slashdot doesn't allow it.
spam != anonymous mail or free speech. for a start it's not anonymous by it's very nature - they WANT you to contact them and know who they are. it's also not free speech, because free speech means i'm free not to listen or help you in anyway. spam intrudes on my inbox.
If you mod me down, I will become more powerful than you can imagine....
that's your choice. that doesn't mean anonymous mail should be outlawed.
i think that forged e-mail header should be banned, but anonymity is an important pillar of the right to privacy.
it may not be necessary for most people to send anonymous e-mails usually, but we still live in a world in which dissidents are persecuted, sometimes even killed.
even in the U.S., if you're a whistleblower for a powerful corporation, or perhaps a powerful government organization, you may face serious repercussions for your actions. if we prohibit anonymous e-mails then potential whistleblowers might be discouraged from revealing corruption/injustice within their organization.
the fallacious "if you're innocent then you have nothing to hide" argument is naive and shortsighted. communication through anonymous channels is vital to any free society.
So they think IP addresses are like ID cards and nobody can spoof them... shows the sorry state of affairs and why we get so much spam and nobody is accountable for it and why they can't catch the spammers.
slashdot rocks
Virginia needs to consider the economic benefits of spam.
http://rocknerd.co.uk
There are no pygmies in Nigeria. If you are receiving Nigerian spam sent by pygmies, the headers are forged.
IANALY, because I have another 1.5 semesters and a bar exam to go. However, I still know a lot more about the law than you, which is why I know things like this was a VA Supreme Court case, not a trial.
Appeals don't work like your small claims cases (thank the gods). You have written briefs from the parties and any interested amici curiae, which is where your technical experts come in. The "trial" is oral arguments before the justices (not "judges") of the VASC, where the two parties have fifteen minutes to emphasize certain parts of their cases while the justices interrupt with questions as the mood strikes them. Typically, this is where the justices ask for further explanations of the arguments in the brief, generally about things that seem not to make sense or could use further clarification. Sometimes, justices will ask questions that draw better arguments out of a party, so as to convince other justices around to their way of thinking.
A justice would never ask, "Well, I'm going to rule this way; what do you think," because that's not the appropriate language for the Court; you're confusing a peer-to-peer relationship with one that is decidedly not. The attorneys for the parties aren't peers of the justices, and the amici aren't peers of the justices. Your role as party or amici is to provide the justice with the information the justice wants in order to come to a conclusion. However, justices will ask questions to get at facts they need, and a skilled lawyer will be able to figure out where a justice is headed from a question, and explain why that reasoning is good or bad.
It's all well and good to have a layman's critique of the system, but it would help if the layman wasn't basing his opinions on completely irrelevant experiences and actually knew something about the system he was critiquing. Hell, even a quick Wikipedia search would have prevented basic misunderstandings about the nature of the court: http://en.wikipedia.org/wiki/Supreme_Court_of_Virginia
I'm a lawyer, but not yours. I wouldn't represent someone who thinks taking legal advice from Slashdot is a good idea.
Sorry about the above post. I felt the dire need to disobey you.
IP and MAC address can be spoofed, so that the ISP will not know the true address and location of the originating client endpoint. Also if WiFi is used, then it becomes easier to hide the true endpoint from the ISP and mail server.
A court is generally not supposed to know anything that's not brought to its attention in the case, other than legal issues which the court is supposed to know all about. If a court issues an opinion in which it is wrong about how e-mail and IP addresses work, that is simply because one of the following things went wrong:
On technical matters, when a court gets it wrong it is usually not the court's fault.
"Spam and other forms of abuse are not speech, just as a brick with an attached note thrown through a window is not publication." If that's correct, then the 1st Amend. doesn't apply and the whole argument can be tossed.
> The first 20 pages of the decision, which are all about legal standing, jurisdiction,
> and overbreadth, made my eyes glaze over.
So legal stuff makes your eyes glaze over and yet you are going to give us your legal opinion. Right.
> I'm not analyzing those at all except to point out that on most of those issues, the
> lower court came to exactly the opposite conclusion from that of the Virginia Supreme
> Court, and there is no reason to think that the higher court is any more likely to be
> "The first 20 pages of the decision, which are all about legal standing, jurisdiction, and overbreadth, made my eyes glaze over. I'm not analyzing those at all except to point out that on most of those issues, the lower court came to exactly the opposite conclusion from that of the Virginia Supreme Court, and there is no reason to think that the higher court is any more likely to be "correct" than the lower court (even granting the assumption that there is an objectively "correct" answer to these questions). correct" than the lower court (even granting the assumption that there is an
> objectively "correct" answer to these questions).
The Virginia Supreme Court is the ultimate authority on matters of Virginia state law. Where Virginia state law is concerned what the Virginia Supreme Court says is "objectively correct".
If the court had upheld the conviction then the defendant could appeal to Federal court on the grounds that the law violates the First Amendment. However, since the court overturned the conviction the state has no grounds for an appeal to Federal court because there is no Federal question.
I agree that there may be flaws in the court's reasoning, but the nearest thing to an appeal is for the state to ask the Virginia Supreme Court to re-hear the case.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
did anyone else wake up to 26,300 or so emails from false IP addresses in Stafford County, VA?
If you aren't prepared to put your name to what you say, then I don't want to hear it.
Then, you will hear only those things that no one is trying to suppress by intimidation or retaliation.
Note that, according to his subject line, GP was referring specifically to mail. He was not saying that he doesn't want to hear anonymous speech in general, just not in his inbox.
I agree with him. People should have the right to speak their mind anonymously in a public forum without limitation, but I don't want anything anonymous in my private inbox.
"You cannot simultaneously prevent and prepare for war." -- Albert Einstein
. . . which may enable the state to win on appeal.
What appeal? Think the US Supreme Court is going to take this case? Possible, but unlikely.
"We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
Comment removed based on user account deletion
No, we wouldn't. There is no merit to that whatsoever. There are plenty of ways of communicating religious or political messages that do not require forging email headers. First, there are anonymous email accounts that do not forge anything. Second, there are anonymous blogging services. Third, there are anonymous web hosting providers. The techniques that these anti-spam laws use have no valid use except to send out mail with no way to communicate back to the original sender whatsoever, making it nearly useless for legitimate religious or political messaging purposes.
Yup. I agree. However, if we get to the point where we have to start signing things to prevent spam, legitimate anonymous email will become a lot harder, and thus laws like this one actually protect legitimate anonymous speech by making it harder for people to abuse the email system in a way that causes people to overreact and block all anonymous speech. The negative consequences of spam on free speech are far, far greater than the negative effects of this law, so if this law successfully reduces spam, it has a positive impact on free speech, not a negative one.
I would also add that free speech---even free political speech---is not absolute. The Supreme Court has long held that time, place, and manner restrictions on speech are perfectly allowable. Email is a manner of speech. It is, therefore, completely reasonable to put limits on speech sent via email, so long as the restriction is reasonably narrow in scope, which these regulations are, IMHO. The court striking this down is completely unreasonable, and I would strongly encourage Virginia to ask the SCOTUS to grant certiorari on this one.
Check out my sci-fi/humor trilogy at PatriotsBooks.
But it's impossible to defend what the court says next:
As shown by the record, because e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name. Therefore... registered IP addresses and domain names discoverable through searchable data bases and registration documents "necessarily result[] in a surrender of [the speaker's] anonymity."
Impossible to defend? Just watch me.
You're overlooking a perfectly reasonable generalization that the judge is making. The IPv4 packet headers and the email headers, to the judge, are one and the same: Both can be used (indirectly) to identify the sender of the email, and both need to be "forged" in order to send anonymous email.
Keep in mind that tunnelling your packets through a proxy effectively "forges" the IPv4 source address, since the communication is actually originating at your computer, but on the receiving end, it shows up as being from the proxy, even though the communication actually originated elsewhere.
The judge was right to point out that you can't communicate on the Internet without including some kind of "sender address", and this address needs to be forged in order to use the Internet to communicate anonymously. As far as his argument is concerned, it doesn't matter whether the headers you're forging are specified in RFC 791 or in RFC 822.
http://outcampaign.org/
I don't know what this has to do with the subject at hand, but I agree with you to some extent. I don't agree that it has to do with people addicted to their jobs, although there are certainly people who are. There are also people addicted to the Internet, or addicted to TV viewing or going to those bars you mentioned. If the people who promote the abandonment of religion (and that would be the majority here on Slashdot) can't find a substitute better than just sitting all day hitting refresh on your browser, I don't think there is much hope for things improving.
I'm not saying necessarily that religion is the answer (although it certainly is an answer). But I see few alternatives presenting themselves. Marx said that The State would for a while become our religion, and I don't care what anyone here claims, we are going down the same path as the Soviet Union, only without a bloody revolution. Der Spiegel is today celebrating the death of capitalism and American dominance, except we haven't been practicing capitalism since the 1800s. Popular belief among American "intelligentsia" is that we now have the power to control every aspect of our society and I foresee that after the next election any failure of such control will simply engender a feeling that the controls weren't strict enough. That's what I'm seeing every day in the mainstream media.
That control, ever more sophisticated, will soon, even if it hasn't already, make anonymity impossible. The novel 1984 may have been a failure in terms of the timing, but I don't think it is far off the mark in terms of where we are going, and the direction as well as end-point to me seems fairly inevitable.
I think I have accidentally wandered back on-topic, my-bad.
The first 20 pages of the decision, which are all about legal standing, jurisdiction, and overbreadth, made my eyes glaze over. I'm not analyzing those at all except to point out that on most of those issues, the lower court came to exactly the opposite conclusion from that of the Virginia Supreme Court, and there is no reason to think that the higher court is any more likely to be "correct" than the lower court (even granting the assumption that there is an objectively "correct" answer to these questions). Any time you feel intimidated by "experts", it's helpful to step back and ask whether the alleged experts even agree with each other.
Well this quote really gets the article started off with a bang. First of all, the expertise of a trial court and a state supreme court should not be presumed to be equal. A trial court judge could be as fresh as the day is young, but a supreme court justice there has to be elected by the legislature and has to go through a vetting process that favors experience.
This sort of "all experts are equal" attitude confuses issues like global warming, where there are clearly people more knowledgeable about a subject than others, but the public is tricked into believing that "balance" demands we treat anyone with an opinion as equal to anyone else.
Now, there are two possible definitions of "anonymity" to consider: (1) you can be anonymous to the extent that ordinary citizens reading your content cannot determine your identity without a subpoena; or (2) you can be anonymous to the extent that even the government, armed with subpoenas and wiretaps, can never find out who you are.
For purposes of government action against citizens violating the law, the latter is the only one that matters. (Well, that plus what the government can't find out without violating the 4th Amendment.) The former is of little relevance. The courts shouldn't rest all First Amendment protections on whether or not the average person can figure out how you are instead of the bodies entrusted with the duty to enforce the laws against you. Otherwise, anonymity would be meaningless in a legal sense except as an excuse to provide a mirage of privacy for citizens.
But there are even ways to be anonymous in the second sense -- such that not even the government could identify you -- without resorting to forged e-mail headers. You can create Hotmail and Gmail accounts without giving the providers any of your true information.
Courts generally will not favor solutions that revolve around you fraudulently entering into an agreement with email service providers who require you to provide accurate information when signing up and agreeing to their service contracts.
Furthermore, you always have to give an email address for confirmation when signing up for such services, and eventually if you peel back enough layers of registration, the courts can find out an account where you had to give real information to someone (whoever you pay for your initial email account), so this is no guarantee of privacy at all.
In all of these cases, the receiving mail server can see the IP address of the sending machine, so a government subpoena would usually be enough to determine the sender's identity. (I know you all know this, but I have delusions that some helpful clerk will print out this article and explain this to the judge.)
Didn't you just completely defeat this argument by mentioning the use of Tor a few paragraphs above?
Also, while the court is interested in protecting legitimate political or commercial speech (and thus speech not made by illegal activities), most spammers "fake" IP addresses by sending mail from virus hijacked machines, so a government subpoena is useless to find their identity in the case of a real spammer.
It would presumably be unconstitutional for an anti-spam law to prohibit anonymous political e-mails which attempt
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
Bull.
We're mixing words and sentences up to the extent that nothing has any meaning any more. If someone wants to print anonymously, they can contact a newspaper (blog/whatever), submit an article, and be heard if the media entity will print it. Hence "publius" in the federalist papers.
But sending mail headers with fraudulant address should be "fraud" in the criminal sense and prosecuted in extreme cases.
To be honest, I don't mind a simple heading of "anonymous" - then I can screen you out without a problem. But lying is a real issue, and should be dealt with, not hidden under some glorious "oppressed" nonsense.
-Jeff
Please learn the difference between a dissenting opinion and a troll before you moderate.
s/technology/economics/
short summary of current national politics
Yes, I *do* have free speech. EVERYWHERE.
No you don't. You don't have the right to free speech within my house, and I can tell you to leave my home and use force to compel you to if something you say offends me. Hell, I can make you leave my home if you refuse to say something I want you to say.
You do not have the right to free speech on my servers. If I'm running a forum and I don't like what you say, I'm well within my rights to delete your posts and ban you forever. Because I own these things, I have control over them, in many ways more control than the government will ever have. The government can only restrict certain types of speech, I can restrict any or all speech.
And if my inbox were a public place funded by public money, anonymous people might have a claim to using it. But my inbox is a private place funded by my money and therefore I have the right to stop people from sending to it since it costs me money to download their message.
I have the right to block phone numbers that don't display their Caller ID from calling me. People who hide their phone number are free to call anyone they want...just not me. And that's because I'm the one paying for the line. You do not get to use my line without my permission. Why should my inbox be any different?
Contrast this with my physical mailbox: I don't pay for it (directly, at least). It does not cost me money to have somebody else send me something, in general. And even COD (does anybody actually still do that?) allows me to refuse delivery if I don't want to pay. Since it is, to some degree, a public method, people can send me things without my requesting it and I have the ability to discard their messages unread. It costs me nothing.
But because I have to pay for the network connection, because I have to pay to download your message before I can determine if I want to see it, it means I get to have some control over what gets put in it.
Your right to anonymous speech does not come with a right to an audience. You do not get to enter my home, without my permission, to try to make your case. If I want to hear your speech, I will go to where you make it.
Oh no! http://xkcd.com/386/
Cool, so does that mean fake ID is constitutionally protected so that I can preserve my anonymity when doing things in public?
Sometimes (well, quite often actually) judges rule on technology issues without really having nearly enough understanding of the underlying issues and what it means. It's amazing how a poorly misunderstood bit of technology can lead to a ruling which has absolutely no relation to how reality works.
And, just because you have the right to free speech, doesn't mean that I'm required to actually listen to you. Decreeing that allowing forged headers in order to allow the special case of some religious or political nut screaming in my ear is ludicrous. Your freedom to speak does not confer an obligation on me to listen.
Someone should start spamming this guy with several thousand emails with forged headers expounding the virtues of the Flying Spaghetti Monster, or calling him at home with forged caller id telling him to vote for the Nut Job Party so he can see the flaw in his reasoning.
If the analog is a phone call, you don't have the right to anonymously phone me over and over.
Cheers
Lost at C:>. Found at C.
So SPAM is different from anonymous random cold-calling that we can easily defer from by adding our phone numbers on the DNC list. Oh that's right, email isn't REAL, so it doesn't count the same way. SPAM as a statistic is 90% of all email traffic and yet it's not a problem. Do these judges not have/use email? Are they all so old and their ways old-fashioned that they don't see our inboxes stuffed with crap to the point where we have to pay for hardware(enterprise) or software(home) solution to end the SPAM madness? Legally and any other way I believe SPAM is wrong. The fact that a judge/judges that clearly has no understanding of the subject matter could rule one way or the other is and should be a case of malpractice. We are granted the right to a jury of our peers(despite what we really get) so why can't the judge be held to the same? If I ever went to could a la Terry Childs, I'd hope to have at least a few IT people on the jury. I know if it was a jury of CEO's I'd fry for such an infraction. In summation Judges + Technology = bad decision.
When you tell people they can't spam, you're telling them that they don't have the right to speak their mind to the world.
No, you're telling them that they don't have the right to make everyone listen to what they want to say... which they don't, as far as I'm concerned.
What they choose to say on their own web site, which I visit voluntarily, or in a public forum, which no-one is forced to attend, is one thing. What they shove, unsolicited, into millions of inboxes is quite another. The problem with spam is not what they say, but the push model they use to say it.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
I don't know what this has to do with the subject at hand, but I agree with you to some extent. I don't agree that it has to do with people addicted to their jobs, although there are certainly people who are. There are also people addicted to the Internet, or addicted to TV viewing or going to those bars you mentioned.
The important difference in those is that the former addiction would appear to be actively endorsed by society in general, or could even be considered indirectly enforced.
upon the advice of my lawyer, i have no sig at this time
Richard Nixon could have used more people like you.
The submitter complains about factual issues, but appellate courts do not determine factual issues. Trial courts do. Before the case reached the VA Supreme Court (an appellate court), the trial court already made its findings of fact. The appellate court can only address the factual conclusions of the lower court if the lower court made a clear error in its analysis of the factual evidence presented. As the VA Supreme Court makes clear, it is analyising what is "shown by the record," not making its own declaration of how the internet works.
In order to know whether the VA Supreme Court should have overturned the lower court's findings, you would have to review the record on file with the court and read the testimony of the various expert witnesses that the parties called to testify. If there was no testimony at all to support the court's factual findings, then the VA Supreme Court could have overturned those factual findings, but only if there was no evidence or testimony to support the finding. If there is any evidence to support the trial court's factual findings, the appellate court has no choice but to go with them.
Courts make factual findings based on the evidence presented to them. Anything that is not obvious to pretty much everybody (I am paraphrasing the law here.) must be proven through evidence (including testimony of expert witnesses).
See here for more info.
This has actually been discussed on Groklaw to the end.
The situation is actually quite simple: The good lawmakers of Virginia passed a law that prevents _anybody_ from using forged headers etc. etc. , including good folks who need anonymity for good reasons protected by the US constitution. Therefore, the law as it stands is illegal. Now a judge _can_ decide that a law is unconstitutional and therefore cannot be used in any court case; a judge can _not_ decide how to fix this law. Therefore it _must_ go back to the lawmakers who have to fix it; as long as it isn't fixed, it cannot be used to convict any spammers.
The article comes up with all these arguments why the court decision is wrong. What he ignores is that the judge doesn't have the power to do that analysis. The only thing the judge can do is to say that the law is constitutional or not. The article claims that there are methods others than those disallowed by the law that make anonymous free speech possible. But that is not for the judge to decide. The law clearly restricts free speech that is protected by the US constitution (while also correctly restricting the rights of spammers to their "speech"), and that is not allowed.
It's like if I found a typo in your post and claimed it was all bullsh!t. Worse, I said it was boring and I only noticed the typo.
Dude! You finally 'get' Slashdot!
Have gnu, will travel.
GP was responding to the assertion that anything said anonymously is not worth listening to. He did not say one should (or should be allowed to) send anonymous messages by forging headers.
"The use-mention distinction" is not "enforced here."
Virginia law is definitely of the "release it now and patch it later" variety. We're a bit like EA that way....
> But the decision contains statements about IP addresses, domain names,
> and anonymity that are rather basically wrong, and which may enable
> the state to win on appeal.
There is no such thing as an appeal from a Supreme Court judgment. That's why it is Supreme! (Except in NY where they use weird names).
From the VA Supreme Court ruling, you have two options:
(1) Ask the VA Supreme Court to reconsider its decision. This rarely happens, but if the Court really did screw up, then it might.
(2) Seek a writ of certiorari from the US Supreme Court. These are also hard to get, but where a state Supreme Court really messes up First Amendment law, you probably have better odds.
That law is in fact prohibiting speech. Even if it were rewritten to be more narrowly focused on spammers, it would still be the wrong approach.
The problem with spam is not a speech issue. It is a property issue.
The protection of free speech in the US Constitution does not grant speakers the right to steal property rights. You cannot steal my paper, ink, and printing press and justify the theft as enabling your freedom of speech.
Remember ... free as in free speech, not as in free beer.
Email costs more to the recipient than to the sender. The sending server only needs to store mail until it can exchange it with the recipient's MX host. In the case of spamming, this cost is virtually nil since the message tends to be the same for all recipients, so only the recipient email address is all that needs to be stored. The recipient server has to store each message individually, if it arrived individually. It also has to store the messages longer, until the recipient's user agent (client) picks up the mail. And that pickup is through yet another active service (IMAP, POP, Web).
Sending something to someone that doesn't want that is fundamentally wrong. It is a theft of computing resources. It can also be a theft of personal time. When this is done on a very small scale, such as trying to contact an old friend that has no interest in communicating with you, or asking someone a question about free software they wrote when they don't want to deal with such questions, then it's generally not a big deal. It's still wrong, but the scale of it doesn't rise to be a criminal interest.
Doing this sending in bulk, however, indicates the intent to benefit in some way from this theft, usually financially. Sometimes there are other forms of benefit, such as political.
It could be argued that existing property law already provides the proper protection. However, this would require a complex constructive argument in court, which might also be easy to knock down. Email, the internet protocols, and the way computers work, are complex issues that would have to be dealt with over and over in courts this way. What we need is a law clearly written to deal with the property theft aspect of spam. It needs to avoid any reference to what the content of a message is. It needs to focus on the means by which the sender is doing the theft in bulk (even if the case before a court is only one instance of what the spammer did). It needs to make clear that freedom of speech is about the right to say what one wants to say, not about giving the speaker a right to steal property from others to achieve that speech.
The law needs to make clear that sending email against the wishes of the recipient is theft. It needs to make clear that doing so in bulk raises the level of this theft to be criminal. It also needs to make clear that the definition of bulk can include sending any one given recipient just one copy.
Such a law should do better to stand within the protections of free speech in the First Amendment.
now we need to go OSS in diesel cars
Wow. (Compares UID) How humiliating.... :-'(
Slow learner here ;-p
Don't quote me on this.
You can read about it here. Among other things, it says that an unsolicted commercial email cannot contain falsified headers.
The reason it did not apply in the Virginia case is that the crime was perpetrated before the act was made law in 2003.
So really this Virginia decision is largely irrelevant when it comes to spam. It is possibly very relevant when it comes to anonymity on the internet.
In the mean time, you have powerful interests (like the government of China) working to ensure that anonymity on the internet becomes impossible.
And that is a case-in-point of exactly why anonymity is necessary to protect free speech.
Don't be dense, Gordonjcp (if that is your real name). It surely can't strain your imagination to consider a situation where the consequences of speaking your mind might prevent you from doing so.
It's easy to be ballsy when you don't have anything on the line, but I wonder how brave (read, stupid) you'd be if your family were in danger.
Literalism isn't a form of humor, it's you being irritating.
Ah. I did misunderstand the intent. Thanks. Sorry if I came across as grumpy. :-)
Check out my sci-fi/humor trilogy at PatriotsBooks.
It's Virginia, for godsake! They only took "Family Reunion" off the official, Virginia Is For Lovers, list of "Best Places To Meet Hot Babes" last week.
I've calculated my velocity with such exquisite precision that I have no idea where I am.
What are you talking about? How would you say "Nee" if you're banned from my forum? How would you bother me by saying "Nee" if you can't come into my property? I have no idea what you're talking about, and I suspect that you don't either.
There are plenty of ways of communicating religious or political messages that do not require forging email headers. First, there are anonymous email accounts that do not forge anything. Second, there are anonymous blogging services
None of these are truly anonymous, however. Someone always knows which IP the mail is coming from.
That's what Tor is for.
Check out my sci-fi/humor trilogy at PatriotsBooks.
Don't be dense, Gordonjcp (if that is your real name).
A quick google would clear that one up.
It surely can't strain your imagination to consider a situation where the consequences of speaking your mind might prevent you from doing so.
Actually, yes it can. I consider anonymous comments to be one of the most fundamentally dishonest things you can do. Fuck consequences, don't lie.
And whoever owns the first onion router you're transmitting via Tor with?
There's nothing dishonest about anonymity. It's just anonymous. I can see that it puts a burr under your saddle and a bee in your bonnet, but everyone's different (and really, really weird). I'd be interested to know why you consider it lying, assuming of course we're NOT talking about forged email headers here.
Don't be dense, Gordonjcp (if that is your real name).
A quick google would clear that one up.
That whooshing sound was the joke going over your head =(
Literalism isn't a form of humor, it's you being irritating.
Judges aren't usually supposed to ask the parties questions. They're supposed to decide issues of law and if a question needs to be asked, the lawyers are supposed to be smart enough to ask it. A jury is supposed to decide the facts, but whether it's a jury or a judge who decides the facts it is the job of the lawyers to ensure that evidence is presented to educate the fact-finder sufficiently to make the correct decision. I really don't want to live in a world where judges have to have technical expertise in every kind of case that comes before them - they'd have no opportunity to learn the law, and that's a hard enough area for them to get right as it is.
The purpose of an expert witness is to assist the trier of fact on matters beyond lay experience, as you know. You have certainly seen a pretty heinous example of a judge getting it wrong, but it sounds like the error got fixed "easily enough" (I put that in quotes because it's such a relative term, relative here to paying 25%+ annual interest). In general, though, there is a lawyer who did not sufficiently educate the judge for the decision he had to make.
Let judges dedicate their time to studying the law. It's critically important that they don't suck at making legal decisions.
All it knows is that you sent some data somewhere. That's the whole point of Tor. No router until the final router can see either the contents of the packet or its destination, and by the time it gets to the final hop, that final router has no idea who the sender was; it only knows which router sent the packet to it, which in turn knows which router sent the packet to it, etc.
Check out my sci-fi/humor trilogy at PatriotsBooks.
No, you're telling them that they don't have the right to make everyone listen to what they want to say... which they don't, as far as I'm concerned.
You're the one running a server and listening to any traffic that comes in. Your protocol is broken and you're asking for *legislators* to fix it? I know of one other group that tried to legislate a new reality... it hasn't gone so well for them. Perhaps you should put your money and mental effort into finding a better technical solution instead of dreaming of a legislative one.
But it also knows where the packets are coming from.
Who cares. Unless it knows where the packets are going or what is in them, all that it knows is that you are using Tor for something. Period.
At best, this shows why it is important to get people to use onion routing more than occasionally so that we don't get asshat politicians thinking that discovering somebody using Tor is grounds for suspicion and a physical search and seizure just to find out what law they are presumably breaking.... :-)
The whole point of onion routing is that unless a large percentage of nodes are compromised, it is impossible to connect one end of the communication with the other, and it is impossible to connect any particular data payload with its sender. Tor is not the strongest of the onion routers, but it is likely good enough to thwart practical attacks.
Check out my sci-fi/humor trilogy at PatriotsBooks.
Yes, I *do* have free speech. EVERYWHERE. Not just in "free speech zones". But on government-taxed paper too. Using the air you might have breathed. And yes, using your server, which CHOSE to accept my messages.
The assumption that a server accepting your message constitutes some form of approval on behalf of the recipient is an idiotic claim on your part. A server is not capable of making an independent, conscious decision and can only act within the parameters that have been given it. My email server routinely accepts a multitude of spam emails because it's doing what it's supposed to do. In this regard, the spam filter on my email server is also doing what it's supposed to do by preventing delivery of those spam emails to the intended recipient. Without the spam filter, the server would dutifully flood my users with spam because that's what it's been programmed to do. Likewise, the server itself could not accept any messages at all without being configured to run an email service. There is no sentient capacity in a server to make choices, either for itself or on behalf of a person.
You're the one running a server and listening to any traffic that comes in.
I'm not, though, am I? And neither are almost all of the other average people sitting at home, whose Internet connections are mainly used for surfing the web and keeping in touch by e-mail. But we still get to pay — in many cases, on a meter basis — for the downloaded material.
Your protocol is broken and you're asking for *legislators* to fix it?
My protocol isn't broken, it's just being abused. If someone was driving around town in the middle of the night, shouting obscenities through car-mounted megaphones, then they would be regarded as antisocial, and the police would prevent them from disturbing the peace any further. If someone started putting offensive leaflets through a victim's door, hundreds of times per day, then that would be regarded as antisocial, and harassment proceedings and an injunction would probably follow.
There is a difference between being able to do something and using that freedom responsibly. So it goes with many things in life, and the Internet is no different. We have laws to penalise those who harm others through their failure to act responsibly, and again, the Internet should be no different in this respect. But it is still much better, IMHO, for freedom to be the default and efforts to be concentrated on holding those who abuse the privilege to account, than to make prohibitions and rules and limited functionality the default and hinder constructive use by the overwhelming majority of participants.
Perhaps you should put your money and mental effort into finding a better technical solution instead of dreaming of a legislative one.
For someone so hot on legislative philosophy, you seem to have missed the old saying about technical solutions to social problems.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Your protocol is broken and you're asking for *legislators* to fix it?
My protocol isn't broken, it's just being abused.
If it is open to abuse, and that abuse is making it unusable to you, it is broken. That's how the evolution of things work. Bad solutions fail and disappear, good solutions persist.
If someone was driving around town in the middle of the night, shouting obscenities through car-mounted megaphones, then they would be regarded as antisocial, and the police would prevent them from disturbing the peace any further.
That isn't an analogy, it's hyperbole. Unlike sleep, you don't have a biological need for email.
If someone started putting offensive leaflets through a victim's door, hundreds of times per day, then that would be regarded as antisocial, and harassment proceedings and an injunction would probably follow.
You cannot be serious. When you push those leaflets through thousands of doors, it's called junk mail. My mailbox is full of it right now. It has all the same characteristics of spam. It's annoying, it's wasteful, only a fraction of a percent of recipients generate a sale, and disposal of it costs me money. Guess what? I haven't heard of a single case where OfficeMax or Bed, Bath, & Beyond, etc have been taken to court for spamming my mailbox. I think the post office might even be in on the scam. I hear they actually charge these advertisers money to deliver their spam!! Can you believe that?!?
There is a difference between being able to do something and using that freedom responsibly. So it goes with many things in life, and the Internet is no different. We have laws to penalise those who harm others through their failure to act responsibly, and again, the Internet should be no different in this respect.
As I pointed out above, you're clearly arguing for a double standard.
But it is still much better, IMHO, for freedom to be the default and efforts to be concentrated on holding those who abuse the privilege to account, than to make prohibitions and rules and limited functionality the default and hinder constructive use by the overwhelming majority of participants.
So, we'd be 'free' to do whatever you say? Greaaaat! And I'm sure you'll find a legislator who's willing to smile and nod for the right price.
Perhaps you should put your money and mental effort into finding a better technical solution instead of dreaming of a legislative one.
For someone so hot on legislative philosophy, you seem to have missed the old saying about technical solutions to social problems.
People trying to make a living by selling stuff isn't what I would classify as a social problem. Junk mail is as old as mail itself. You're looking at this completely backwards. Your only hope to truly defeat spam would be to offer a better solution than spam. Simply trying to remove junk mail without having a replacement plan is like the RIAA trying to stamp out piracy without offering any alternatives. Either that, or you can quit whining about the failings of SMTP and use/invent a different protocol. Those are your two basic choices. Legislation is a waste of time, money, and effort as this story plainly illustrates.
That isn't an analogy, it's hyperbole. Unlike sleep, you don't have a biological need for email.
No, but I imagine in today's society the majority would consider it an important communications channel, like the postal service or telephone. It has important practical uses, and improves quality of life generally.
My mailbox is full of it right now. It has all the same characteristics of spam. It's annoying, it's wasteful, only a fraction of a percent of recipients generate a sale, and disposal of it costs me money. Guess what? I haven't heard of a single case where OfficeMax or Bed, Bath, & Beyond, etc have been taken to court for spamming my mailbox.
Then your country's laws suck. Physical mail, as you say, has much the same characteristics of spam. My country has chosen not to accept the annoyance to the general population, and one quick trip to a web site put my address on a compulsory no-junk-mail list. Telephoning me for marketing purposes is also against the rules, via the analogous preference service, again activated by one quick trip to a web site. Anyone violating these prohibitions is liable to substantial financial penalties.
As I pointed out above, you're clearly arguing for a double standard.
No, I'm being perfectly consistent, and you're ill-informed and making a typical slashtroll assumption that everywhere in the world works like wherever you live.
So, we'd be 'free' to do whatever you say? Greaaaat!
I'm sorry, but I think you missed my point here. I prefer the current system, where the default is that anyone can e-mail anyone else for any reason, and we only prohibit specific harmful actions. Any alternative, if we followed your suggestion and changed the protocol to avoid abuse, would surely be more restrictive by default.
Your only hope to truly defeat spam would be to offer a better solution than spam.
Oh, I think imposing draconian penalties on those who go around making countless others' lives less pleasant would help, too. This is how laws normally work. It's a combination of deterrence and, if that fails, active prevention through loss of liberty.
The problem is that right now, we don't seem to be able to do that, mainly because people like you seem to think the law should provide a right to harass everyone else with impunity.
Simply trying to remove junk mail without having a replacement plan is like the RIAA trying to stamp out piracy without offering any alternatives.
Well, not so much, because at least in the RIAA's case a substantial proportion of the population clearly feel justified in violating the current system for one reason or another. (As it happens, I don't believe most people really think such behaviour is ethical, and I think people who illegally copy music should be penalised effectively as well. I'd just like the see the RIAA suffer a multi-billion dollar penalty for illegal price fixing and violation of competition laws to go with it.)
In any case, I rather doubt that a similar proportion of the population welcomes the junk mail it receives. Junk mail is nothing but a small group of selfish people harassing innocent bystanders against their will, and should be treated accordingly in law. It is, at least in my country, in every case but on-line.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Your only hope to truly defeat spam would be to offer a better solution than spam.
Oh, I think imposing draconian penalties on those who go around making countless others' lives less pleasant would help, too.
Ever heard of a bot net or an anonymous proxy? Stopping spam with legislation is not possible. If you live in such a progressive nation, tell me... where are your spam laws? How come they aren't working? Shouldn't you be emailing happily and spam free thanks to your great legislators? Why are you here complaining? By your own logic, you should be spam free by now. What went wrong?
Simply trying to remove junk mail without having a replacement plan is like the RIAA trying to stamp out piracy without offering any alternatives.
Well, not so much, because at least in the RIAA's case a substantial proportion of the population clearly feel justified in violating the current system for one reason or another.
That's why Apple's iTunes store went out of business... oh wait, it didn't. Apple became the number one music retailer in the US by competing with "free music" head on. Obviously, Apple offered people something piracy doesn't give them. So much so that they were willing to pay for it, and purchase from Apple in lieu of traditional means. Your logic is failing again.
Your other mistaken assumption here is that spammers are some small minority. Big successful spammers may be few, but small time spammers who would take up the torch in their absence are legion. You aren't going to take down a handful of spam kings and solve the problem. Tough laws and taking down Napster didn't solve the piracy problem.