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California Spam Law Upheld By Appeals Court
www.sorehands.com writes "In the first California appeals court ruling (pdf), in Hypertouch v. Valueclick, it is ruled that the I-CAN-SPAM Act does not preempt California Business & Professions Code Section 17529.5. California Business & Professions Code Section 17529.5 prohibits the use of falsified headers and subject lines that are likely to mislead recipients. Spammers have been claiming, and some courts have been ruling, that to survive preemption, a Plaintiff has to show all the elements of fraud (false representation, knowledge, reliance, and damage from the reliance.) The reliance and damage from the reliance is difficult as it would essentially require the recipient to buy the penis enlargement pills and show that they don't work, or to send the money to the Nigerian prince. An ISP could never show reliance and harm, as they are not the recipient and would not be responding to e-mails traversing their systems. The ruling also made it clear that the advertiser is responsible for the acts of their agents, even if their agents promise not to spam."
So can you actually prove that your p3n15 did NOT get bigger?
"Have you ever thought about just turning off the TV, sitting down with your kids, and hitting them?"
So can you actually prove that your p3n15 did NOT get bigger?
By dropping trou and holding up a ruler. How else would you do it? For the courtroom I guess you'd do that for a doctor who would then report any anatomical changes. If it took me five seconds to think up an answer then you wasted a first post methinks.
explain the summary?
Our elected representatives actually got it right for once. They crafted legislation that holds the advertisers and beneficiares of spam accountable for the spam itself. It only took them a decade plus, but this is the government we're talking about here. The fact that they got it done is to be lauded.
The ruling also made it clear that the advertiser is responsible for the acts of their agents, even if their agents promise not to spam.
YES!
Don't like it? Then don't get into email advertising. How's them apples?
For large sets, this will be our guide even unto death, for the LORD will work for each type of data it is applied to...
If California's law outlaws spam, then are current spammers able to insure that their messages aren't going to California? Or is it that the government isn't interested in spammers and only a few (very, very few) individuals have ever won a judgement against a spammer?
The problem is that unless you are willing to invest a significant portion of your life to the pursuit and persecution of a spammer, it is all meaningless. California's Attorney General's Office isn't going to take on spammers. A judgement won in California will have little effect in a non-US country and it may not have much effect in a different state. Want to prove what assets a spammer in Maine has from California? Good luck with that unless you are prepared to spend plenty of money.
The Internet is pretty much a consequences-free zone. Unless you are incredibly egotistical or stupid you can't be convicted of anything that happens "on the 'net." Of course, there are plenty of egotistical and stupid people stepping up to be prosecuted for crimes on the Internet every month or so. But the selling of fake drugs and scamming of people continues every single day.
I know first-hand those augmentation pills don't work. Oh, wait, I mean...
"The ruling also made it clear that the advertiser is responsible for the acts of their agents, even if their agents promise not to spam"
If I read this correctly it means the the company that employs the spammers is not immune from prosecution! At least the land of Arnold got one really important aspect or this law right!
All said in the subject...
The ones in California did. The national ones completely fucked it up, and it took the courts (ie, not our elected representatives) to fix it.
In Silverstein v. Liquid Minds et al. BC340643 and BC351414, I not only obtained two judgments, but I collected on them. In Silverstein v. Liquid Minds, BC375173, I was able to seize their domain names, before that judgment was vacated. The judgment was vacated as a result of the perjury of their attorney, John DuWors. He, in their motion to vacate default, stated under oath that he had personal knowledge of, and the defendants corporations were unrelated, and that Defendants never received service of that or any of the prior lawsuits. These six Defendant corporations, Dev8 Entertainment, AXS Charge, Liquid Minds, East Group, Techie group, and Datatime Ideas Limited, were in fact run solely by David Szpak and Emmanuel Gurtler. The lies put forth by John DuWors were contradicted by the testimony of Emmanuel Gurtler at deposition -- that they received prior lawsuits, but decided not to defend them, that it was just Gurtler and Szpak running the companies, that they created East group and Techie Group to avoid the Visa fraud detection/chargeback mechanisms.
Actually, the California AG did take on one spammer, Optin Global. But it was in conjunction with the FTC. http://www.ftc.gov/os/caselist/0423172/0423172.shtm
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It took Plaintiff's fighting the spammers in the Courts and keeping the judges from being bamboozled by spammers attorneys.
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How about the women who were injured because the pills worked too well?
The of course the pills that cause erections to last more than 4 hours.
Fight Spammers!
If I'm running a mid size company and I hire an ad agency that gets paid for referrals (and it's a fly by night LLC), I'm really venerable now. I guess the anti-spam crowd will tell me not to hire a fly-by-night, but don't most successful businesses start that way? And how am I suppose to know?
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
Hypertouch v. Valueclick
Since I'm not going to read the article, I figured I'd guess which one was the spammer and which was the ISP based on the company name alone.
Total fail.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
Replacing a MacBook Pro keyboard is not "trivial". Tiny screws, sticky plastic film, tiny connectors; you have to be careful to not mess up the backlight. http://www.batteryup.com/
Since my Gmail account is technically in Mountain View, can I sue for damages?
To understand recursion, you must first understand recursion.
California's laws often lead the way simply because it's hard to do anything nationally or internationally without becoming subject to its regulations and laws. How easy is it to spew out spam without some of it going to California email addresses? Not very, I should think.
Want to run a Certified Email server? Go to your ISP (or other such companies that may arise to offer the service). They check you out (Are you who you say you are? Do you have valid contact information? Etc...), then have you produce a Public/Private key pair. You give them the 'Public' key, and keep the 'Private' one to configure your email server with. Your email server must add an additional header with your Certifier's Certification Server (usually their email server), and a header that is encrypted with your Private key.
An email client that is Certification-compatible will, when it receives an email, look to see if it has those two headers. If not, it will handle it according to the user's wishes. This means NON-Certified email might be deleted, or sent to a different folder, or whatever. Whitelists/blacklists are still possible.
If the email has the headers, the email client will connect to the Certification Server listed in the one header, and download the 'Public' key to attempt to decrypt the other header. If the decrypted header is valid, the client treats the email the way it is configured to, usually by placing it in the Inbox. Again, whitelists and blacklists can still be used.
Here's the most important part: If the user receives Spam that is Certified, they can easily report it to the Certifier (email clients would have a 'Report Certified Spam' button that automatically shoots an email off to the Certifier, for instance). The Certifier can then contact the owner of the Certified Server and notify them of the spam. This gives the server owner a chance to stop the spam, in case the server was hacked or the spam was accidental. If the Server owner does not stop the spam, the Certifier simply pulls the Certification, by removing the 'Public' key on their server. From that moment forward, ALL email the Email server in question sends will be NON-certified (and quite frankly, probably deleted by the recipients).
If the Certifier refuses to do anything about the Spamming Server (because they are 'in on it', friendly to spammers, or just incompetent), then ALL Certifications from that Certifier can be marked as 'bad', either on a client-by-client basis, or thru the use of a Certifier black-list.
-There is no 'Central Authority'- your ISP Certifies you for a modest fee.
-You can still send non-certified email, so hobby mailing lists and the like are not affected- the people who receive the mailing list might just need to whitelist it.
-Legit email will (eventually, almost always) be Certified, so Certified emails can be sent straight to the Inbox. Non-certified email will (eventually, almost always) be spam, so it can be trashed.
-Any spam that is sent from a Certified server will quickly be reported by pissed-off recipients, and quick action will be needed to avoid that Certifier (and ALL the servers it has certified) from being put on a blacklist.
-Spam will dwindle as Spammers either move to 'spam-friendly' Certifiers (which are blacklisted so the spam never gets thru anyway), or will spend huge amounts of money switching ISPs every 2-3 days to get re-certified over and over. Of course, ISPs could take a clue from the Las Vegas Casinos, and keep a 'black book' of known spammers, and check new clients against them before Certifying them.
-This system does not need to be adopted all at once. Certified and non-certified emails can be handled both by email clients that are Certification aware and not.
It may not be perfect, but it'd be a good start.
If I understand correctly... Advertisers being held responsible for their agents' spam also means taht any company operating in California can't spam / tell their agents to spam, regardless of where the servers are or who get the spam. So it's pretty much "No company that has any kind of ties to California can employ spam in any way"!
As for the bankrupt state... I don't know how these things work for you in the USA but if the state can fine the spammers large enough amount, this seems exactly like what a bankrupt state should do.
Texas even more bankrupt. The entire USA? Bankrupt too.
If you hire an employee, don't you check if they have a criminal record? You don't check their past employers? You don't check and verify references?
David Szpak and Emmaneul Gurtler, decided not to check before hiring any affiliate, not even to check if they were on Rosko.
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