Spammers can say anything they want, but they *CANNOT* force other people to listen
True. But I have never heard of an email that could be sent that forced people to read it. I mean, would such a super email order me a computer and set up a mail account for me just to ensure that I could read it, if I couldn't before? That'd be a hell of an email.
or to force people to pay for that speech.
Yeah, they can do this to a degree, actually.
If the recipient doesn't take affirmative steps to refuse spam, then the costs he incurs in receiving it are not sufficient to make the sending of the spam wrongful. This comes from the Bolger case, which said the same thing for junk mail (it was from 1983, so a little early for spam).
Opt out in some fashion, and then your second point will work.
When a site is/.'ed, is that a DoS attack that should provide the site owner with a legal remedy against/. or its users?
Welcoming communication doesn't rise to the level of welcoming attacks, but spam isn't an attack, normally. Maybe if a single spammer, or coordinated group of spammers tried to attack with spam, it would be, but just sending some spam, and not a crazy amount, that's not enough.
No he doesn't. If there is no filter, then there's nothing to be on notice about. If there are filters, he doesn't know what they are. And if the mail is filtered or not, he can't know.
Look, I filter the forwarded jokes that my Mom sends me, because I don't like them, I don't read them, and I don't want them. But I don't tell her that, because I don't want to hurt her feelings.
Are you saying that she's breaking the law if by some chance she sends one to me and the filter (which merely matches her address and 'fwd' in the subject line) lets one through because it didn't match the rule?
I find that difficult to believe, and I've seen no support for such a bizarre claim in the law. So no, I don't think email filtering is a security measure.
As for the nonsense about 'stealing resources' I think I've successfully attacked that enough today.
They didn't say that. Slashdot managed to misreport what happened several times.
What happened was that the lawyer challenging the FCC went before the panel of judges, and they asked questions attacking his position. Then his time was up, and the FCC lawyer went before the panel, and the judges askwed questions attacking the FCC's position.
Judges do this all the time. It forces the lawyer in front of them to respond to questions he wishes no one was asking. If he has a good argument, he can provide good answers to the hard questions. It's just a technique to elicit information. It doesn't indicate anything about the judge's actual position.
Plus the court won't issue their ruling on the matter for several months still.
Maybe I'm reading too much into your analogy, but burglary doesn't hinge on whether doors are locked. But you probably couldn't burgle a gazebo or open pavillion, which is more like an unfiltered mail account.
You pay to be hooked up to the phone network, you pay in your time, and you pay in having the phone unavailable for other uses whilst on a call with a telemarketer.
The costs don't have to be strictly monetary; the argument junk mailers successfully made was it is not too great a burden to have to sort and throw out junk mail.
Also, in the US we have a do not call list. It's the equivalent, basically, of a 'no solicitors' sign in the front yard. No reason why you couldn't have one for spam.
Regarding volume, if it's all from one spammer, then maybe that's something. But is it the fault of spammer A (who sent one piece of spam) if spammers B-ZZZ all did the same, without coordination?
Telemarketing does not render the landline useless, whereas spam CAN (and quite often does) render email (and related things, like Usenet) useless or next to useless.
During the call it does. As for mail and usenet, they're still easily filterable. The situation is hardly dire. (Plus this is usenet you're talking about; the spam is porn, which is probably what most people there are looking for. Big binaries OTOH stand out anyway.;)
And you do not have effective way of getting rid of spam. Emailing the spammer and asking him to stop? Hah! Emailing him would simply confirm that your email-address is active, and he would send MORE spam to you! "Do-not-mail"-lists? Sorry, those do not work.
Well, I'm saying that it might be okay to penalize spammers that didn't respect opt outs, either actual, or via a dnm list.
If such penalties wouldn't be effective, how exactly would basically the exact same penalties levied against all spammers be more effective?
Seems to me the 'ban all spam' people don't have a good solution either, at least not one that wouldn't work just as well in a more specific arena such as I'm discussing.
I don't recall that I said that spammers can order people to have email accounts.
What I'm saying is that where people choose to have email accounts, they implicitly welcome all communication, unless they explicitly provide reasonable notice that they don't want it.
A junk mailer can't send junk mail to a person without a mailing address, and can't force them to have an address. But once you've opted to have one, it's okay for them to send it to you, all else being equal.
Spammers are sending me email at my expense. There is little cost to them, great costs to the receiver. Junk snail mail is the opposite.
In both cases, there is expense to both parties. So mere expense doesn't seem to be the issue.
Plus, who cares if it's expensive or cheap to send, all else being equal. Is junk mail no longer protected by free speech if the mailer gets a great deal on recycled paper? So sender expense doesn't seem to be the issue.
This leaves you with recipient expense, and from junk mail cases we know that at a minimum, some recipient expense just has to be borne, basically. So on the one hand, we might ask where the threshold is; how much recipient cost should recipients have to bear? Or we can still credibly consider whether there is a threshold at all.
And how much snail junk mail contains explicit invitations for fake drugs or porn? How much snail junk mail do you get in Japanese or Spanish? Why should I meekly put up with receiving email versions of the same tripe?
If it's fraudulent or deceptive or promotes illegal activities, then it's not going to be protected anyway. But that's true regardless of medium. You're making a great case for attacking fraud on the internet, but not for attacking spam as a whole, some of which isn't like that.
Language is totally irrelevant.
And who said you have to put up with accepting it? Opt out. Or don't accept it. That's not the same as insisting that people not send it in the absence of you making your wishes known.
If it incorporates filter-cracking, it is by definition neither truthful nor forthright.
No, that depends on precisely what's going on. But since you seem to allow for mail that doesn't try to get around filters but nevertheless does, it doesn't seem to be a significant issue right now.
Paper junk mail sent in a manner analogous to filter-evading spam (i.e. Joe Blow knows that a large number or recipients have instructed the post office to not deliver his mailings, so he changes his name to avoid the block) is most certainly not protected.
That's not very analgous. Filters are passive; a spammer has no way of knowing if a recipient has filters, and if so, what they are. All he can do is guess. That's entirely different from being expressly told to not send further mail.
Contradiction in terms, and hence meaningless.
No contradiction. I have been thinking of applying for a new credit card. I have never solicited credit card applications, but I get several per week, and I'd like really favorable ones to arrive, though I'm still not taking any action right now to further this desire.
A perfect example of wanting unsolicited messages.
You should also note that having a modem "wardial" phone numbers is also generally illegal. If you really want to continue your free speech fight, I suggest you set aside the SPAM issue for now and first work on those older wardialling laws. Defend the free speech right to dial 10,000 consecutive phone numbers with your free speech modem tones.
Really? That's odd. I recall a case -- I don't recall the cite right now, sorry -- where it was held to not be illegal, at least under the CFAA, IIRC.
Cite the law, and maybe it'll attract my interest.
Remember, the Court did say that at least some costs imposed on recipients were okay, so there's no blanket rule against sending mail just because it involves some resources on the reciever's end.
Or have you come up with a different right that's involved?
And if I telemarket to you, I still have to call you on your landline, which you pay for, and engage the use of your telephone, which you paid for. You haven't given me permission to do so.
So how is that different?
As for compromised machines, that's illegal whether they're used for spam or not. Don't cloud the issue.
I use Thunderbird as a mail client, and it has spam filters, but it does receive spam; it just moves the spam into a different folder.
This seems to me to be the equivalent of sorting through one's mail after delivery. I could do it, a secretary could do it, but it's passive on our end from an outsider's perspective, in that third parties aren't privy to what is or isn't filtered.
It's not like having the USPS not accept certain mail.
I think the problem here is that avenues of communication are special.
If you have a house, and you have a yard, it is gernally trespassing for people to enter your property, walk across the yard, and to the house. Permission is needed. This applies to pretty much anything they might do, e.g. play frisbee on your yard, or just stand there, admiring your car.
But because society values communication, if someone were to trespass for a communicative purpose, i.e. to go to your front door, knock, and if you answer, to talk to you, we flip things around and consider there to be implicit permission automatically.
The only way to still claim the speaker trespassed would be if you can show there was no such implicit permission, generally either by explicit retraction of permission, or by showing some reason that the implicit permission wouldn't exist under the circumstances (e.g. it's 3 in the morning and the communication wasn't vitally important).
If the use of your computer by the outsider were something other than to send messages to you, then your argument would be a fairly good one. For example, other people can't really claim a first amendment right to use VNC to play games on your computer.
But email -- that works, and so the assumption that people able to receive communication will want to, or at least have the option to reject it themselves, rather than having government decide for them stands.
Spam is generally going to be commercial. There is a first amendment right for commercial speech, and there are two reasons for this. First, that persons in commerce should get a chance to inform the public about what they're doing. And second, that the public has a right to find out. Although the first amendment only speaks of a right by the speaker, in fact it necessarily incorporates a right to listen, lest the speaking right be moot. For government to prevent people from getting to decide on their own whether or not they want to hear an ad is paternalistic and doesn't help to inform the public; it just leaves them in the dark.
With the choice of whether or not to get spam left in the hands of the recipient, we not only adhere to the general policy of encouraging speech generally (regardless of what we think of any specific bit of speech) but also let the recipient decide if some message is spam in his own opinion. We don't force our opinion onto him.
Good cases to look at are Central Hudson, Rowan, and Bolger. They go through a lot of the logic involved. And the same basic debates have played out in cases involving actual door to door solicitation. Generally, these things work out in favor of more speech, not less. Because the guiding principle in free speech issues is that more is better.
No. It remains an abstract issue for me in that respect. The work I do for clients is generally of a more technical nature (register trademarks, write contracts, etc.). We don't all get to argue constitutional issues for a living.
It'd be fun, though.
Filtering on the receiving end is not good enough. I am paying for that bandwidth and, given that 70% of internet traffic is now junk mail, I am subsidising your spammers.
Well, no one is making you receive mail at all. You know or should know that people can send unsolicited mail. Why are you so shocked when they do? The net is ultimately a network of peers, so there's no way to ensure filtering from the sender's end. Filtering at the end, or at a remove from the end (e.g. at an ISP or above) is more or less it.
I think that you might also pursue fraud which happened to be perpetrated by spammers (as opposed to pursuing spammers in their own right) and in practice cut down on some of the volume of spam. But this still isn't a ban on spam.
Is anyone preventing such a recourse from being established? An opt out list seems to be on firmer legal ground than an outright ban.
And while it might be difficult to administer for various reasons, those same difficulties would exist for a ban as well, so it's hardly an argument against opt out. Plus the opt out can be fairly broad -- take a look at how the postal one works.
While one is minimal, it is so easy to do in bulk that it can reach the point that the cost of dealing with it is not negligible. The cost for organisations is even worse, if you deal with hundreds of email accounts mounts up both in time, bandwidth and possibly hardware.
Still, given the importance of protecting speech, I think it's not too great a cost. In fact, personally I don't think there is a cost threshold.
Most spam these days pretty clearly is designed to get around filters.
Not the same thing. It's perfectly okay for junk mailers to send out junk mail in hand-addressed envelopes. This gets past the 'mental filters' of a person sorting through their junk mail, but isn't actually fraudulent or deceptive.
Advertising is supposed to be able to get people's attention; this might happen through initially subtle means. Getting through filters without rising to deceptive levels strikes me as part of that. It's because the filters are too passive, mostly.
But it IS, in fact, inevitable with spam. Anyone with the slightest experience dealing with spam knows that. It's theoretically possible for a spammer to operate without stealing services, but it's not as a practical matter. In order to do that they would have to confine themselves to spamming on spam-friendly networks, which would mean spamming almost no one but each other. No spammer has ever been satisfied with that.
Still not a good reason to attack all spam; you're admitting that they're not coextensive. But you're setting yourself up with a good reason to attack spammers that do engage in practices that are illegal regardless of spam. Think of it as being the equivalent of getting Al Capone for tax evasion.
My general point is that spam is not wrongful by itself. Fraud is, however, whether in the course of spam or not. So are some other things that one might see in specific spam messages. If you go after the bad spammers, that's okay, but it's no excuse to lump the good ones in with them. And if there are no good ones now, then perhaps leaving that niche open and only pursuing the others will encourage some spammers to clean up their act.
And as you damn well know the vast majority of the cost involved there is paid by the junk mailer. Materials, design, printing, postage... and they pay high postage, in effect subsidising the entire postal system. For this they get delivery.
Email spammers often pay nothing whatsoever to send, and never pay any significant fraction of the total transmission cost in any event. Very different situations.
From a legal perspective, there's no relevance to how much senders pay. The free speech rights of junk mailers has nothing to do with their subsidizing the USPS.
There could at least be an argument regarding recipient costs, but the Court has already told us that some recipient costs are okay. And it's arguable that any recipient costs are okay if we don't enter new and weird territory such as harassment (which would involve lots of spam from one source, or multiple sources working together) Plus, even if we do have a cost threshold, we then need to start quantifying it and working out just how it all breaks down across different communications methods.
So you need to come up with an argument that holds water. What you're talking about there isn't useful to you.
Sending millions of emails to random addresses can never be anything but an assault on the email system
Junk mail is sent to millions of random addresses, and it's protected. And it'd remain so, even if the USPS had difficulty delivering it all; it's not the problem of mailers to ensure that the infrastructure can support them.
A DNC list has to be signed up for; it's a way of administering the equivalent of 'no solicitation' signs in a medium that normally doesn't allow for such signs.
But telemarketing is fair game if you don't sign up.
I wouldn't have significant problems with a government-run Do-Not-Spam list.
Let me just quote the post to which I originally responded:
Email spamming != Free Speech. Free Speech does not entail the right for you to use my private property to dump your unwanted advertising.
All email spammers should be put to sleep, as should this idiot judge.
He's pretty clearly talking about all spammers. Not just the ones that break the rules.
While I have no great sympathy for spammers that defraud people, etc., I am defending those that engage in acceptable business practices and yet still are sending unsolicited commercial email. Email that is not obscured as to origin, that is not fraudulent or deceptive, where opt outs requests are adhered to.
A law that outlawed spam altogether would go too far. Narrow it to people that are acting reprehensibly regardless of communications medium, and if I might remain uncomfortable about endorsing it, I at least might not oppose it.
But of course, remember that virtually every free speech case there is involved breaking a law. A lot of those laws turned out to be unconstitutional, in part because their purpose was to prevent people from saying things that the lawmakers didn't want said.
I think most people attacking spam are doing so chiefly because they don't like any commercial content, and then because they don't like the volume. I think they need stronger reasons than that. If they'd work at it, they could get some, and they'd have a stronger argument.
Being from the UK, I continue to find "no solicitors" amusing. Even more so coming from a lawyer.
Mm. More so, since while lawyers here can all go into court (assuming they're in the appropriate bar or get dispensation), I really only do transactional work in the office, and never litigate. This would make me more of a solicitor than a barrister in practice, although honestly the whole thing you guys have is bizarre. I like the wigs, though.
Anyway...
Enforcement is a gigantic pain in the ass when you start dealing with the architecture of the net, and crossing national borders.
But if we can set aside that huge practical problem that any attempt at regulation would have, I think the issue is just determining how much notice is reasonable.
I think the address is the place for it for the moment. If addresses that have a 'no spam' component added to them (e.g. 'elizabeth2@NOSPAM.gov.uk') are picked up by a spammer, then mail sent to the actual address indicates that someone's removed it, which indicates that they knew or should've known that spam wasn't wanted.
Sadly, this doesn't work well with regards to if the address collector is not the spammer, or if it is collected from somewhere else, guessed, etc.
Redesigning email would be the most effective solution, but at great cost, I fear. The Internet has been very popular in part because it is pretty free wheeling. Architectural changes to get rid of spam strike me as being likely to have massive negative consequences. If an email system where spam is possible is part and parcel of being able to get around censorship imposed by dictatorships, or to allow psuedonymous and anonymous use, then I'd rather just put up with the spam. Better that than a regulated net that's more akin to AOL.
then why are there laws against fax spam and telemarketing to cell phones
Why the laws exist would be lobbying; there's no fundamental rule involving costs.
Why they haven't been overturned, that's the more interesing question. The few courts to look at it do seem to have latched onto the idea, but honestly, I've read the cases, and they seem to be weak. I think they're wrongly decided, and that such laws are unconstitutional. Hopefully future challenges will come along and vindicate my position.
by sending spam to people who've specifically asked not to be spammed
N.b. that I'm not defending that practice.
Because no matter how reprehensible a spammer's actions, some ambulance chaser will see a quick buck (or a reputation) to be made off of defending the spammer's "right" to waste my time and MY fucking bandwidth that I fucking pay for.
Could be. But I think you underestimate that a lot of lawyers have very earnest beliefs in civil liberties. Given the nature of my practice, I'd be very surprised if I ever wound up with a spammer as a client in such a suit; it'd be like going to a dentist for a problem with your liver. So my position here isn't motivated by averice or fame seeking -- I really think that there is a significant first amendment issue at stake.
This crap you're spouting about the cost to both sender and receiver suggests that as long as someone wants to call it "free" speech, then the receiver should have to bear that burden.
No, I'm saying that both incur a burden, and that the burden doesn't matter. And I do have strong support in the caselaw that at least some burdens don't matter, which would mean that in the worst case scenario we merely have to figure out where the threshold is, but that you still couldn't have an absolute ban.
make sure everyone knows that they're violating your right to free speech
No, they're not special cases; they're all the same case. Government can't limit free speech, as would be the case if spam were banned somehow. Every example you have involves private actors. That's a big difference.
Slashdot Mirror
Spammers can say anything they want, but they *CANNOT* force other people to listen
True. But I have never heard of an email that could be sent that forced people to read it. I mean, would such a super email order me a computer and set up a mail account for me just to ensure that I could read it, if I couldn't before? That'd be a hell of an email.
or to force people to pay for that speech.
Yeah, they can do this to a degree, actually.
If the recipient doesn't take affirmative steps to refuse spam, then the costs he incurs in receiving it are not sufficient to make the sending of the spam wrongful. This comes from the Bolger case, which said the same thing for junk mail (it was from 1983, so a little early for spam).
Opt out in some fashion, and then your second point will work.
When a site is /.'ed, is that a DoS attack that should provide the site owner with a legal remedy against /. or its users?
Welcoming communication doesn't rise to the level of welcoming attacks, but spam isn't an attack, normally. Maybe if a single spammer, or coordinated group of spammers tried to attack with spam, it would be, but just sending some spam, and not a crazy amount, that's not enough.
I don't see that it's silly.
No he doesn't. If there is no filter, then there's nothing to be on notice about. If there are filters, he doesn't know what they are. And if the mail is filtered or not, he can't know.
It's too tenuous to even be constructive notice.
I never said the ISP was the post office. The sender's ISP _might_ be the post office, but not the recipient's ISP.
Look, I filter the forwarded jokes that my Mom sends me, because I don't like them, I don't read them, and I don't want them. But I don't tell her that, because I don't want to hurt her feelings.
Are you saying that she's breaking the law if by some chance she sends one to me and the filter (which merely matches her address and 'fwd' in the subject line) lets one through because it didn't match the rule?
I find that difficult to believe, and I've seen no support for such a bizarre claim in the law. So no, I don't think email filtering is a security measure.
As for the nonsense about 'stealing resources' I think I've successfully attacked that enough today.
They didn't say that. Slashdot managed to misreport what happened several times.
What happened was that the lawyer challenging the FCC went before the panel of judges, and they asked questions attacking his position. Then his time was up, and the FCC lawyer went before the panel, and the judges askwed questions attacking the FCC's position.
Judges do this all the time. It forces the lawyer in front of them to respond to questions he wishes no one was asking. If he has a good argument, he can provide good answers to the hard questions. It's just a technique to elicit information. It doesn't indicate anything about the judge's actual position.
Plus the court won't issue their ruling on the matter for several months still.
So the big hubbub was over nothing.
Since when is it a felony to avoid ISP level mail filtering? What statute does that? I think they're the same situation.
Maybe I'm reading too much into your analogy, but burglary doesn't hinge on whether doors are locked. But you probably couldn't burgle a gazebo or open pavillion, which is more like an unfiltered mail account.
Seriously, legal solution to spam is difficult to come by, since there are so many loopholes and jurisdictions involved.
Which is a bigger problem than you give credit for.
Ineffectiveness can result in the law being unconstitutional, under the right circumstances. And this is ripe for it.
I do not pay for incoming calls.
;)
You pay to be hooked up to the phone network, you pay in your time, and you pay in having the phone unavailable for other uses whilst on a call with a telemarketer.
The costs don't have to be strictly monetary; the argument junk mailers successfully made was it is not too great a burden to have to sort and throw out junk mail.
Also, in the US we have a do not call list. It's the equivalent, basically, of a 'no solicitors' sign in the front yard. No reason why you couldn't have one for spam.
Regarding volume, if it's all from one spammer, then maybe that's something. But is it the fault of spammer A (who sent one piece of spam) if spammers B-ZZZ all did the same, without coordination?
Telemarketing does not render the landline useless, whereas spam CAN (and quite often does) render email (and related things, like Usenet) useless or next to useless.
During the call it does. As for mail and usenet, they're still easily filterable. The situation is hardly dire. (Plus this is usenet you're talking about; the spam is porn, which is probably what most people there are looking for. Big binaries OTOH stand out anyway.
And you do not have effective way of getting rid of spam. Emailing the spammer and asking him to stop? Hah! Emailing him would simply confirm that your email-address is active, and he would send MORE spam to you! "Do-not-mail"-lists? Sorry, those do not work.
Well, I'm saying that it might be okay to penalize spammers that didn't respect opt outs, either actual, or via a dnm list.
If such penalties wouldn't be effective, how exactly would basically the exact same penalties levied against all spammers be more effective?
Seems to me the 'ban all spam' people don't have a good solution either, at least not one that wouldn't work just as well in a more specific arena such as I'm discussing.
That's very irrelevant, but true.
I don't recall that I said that spammers can order people to have email accounts.
What I'm saying is that where people choose to have email accounts, they implicitly welcome all communication, unless they explicitly provide reasonable notice that they don't want it.
A junk mailer can't send junk mail to a person without a mailing address, and can't force them to have an address. But once you've opted to have one, it's okay for them to send it to you, all else being equal.
Spammers are sending me email at my expense. There is little cost to them, great costs to the receiver. Junk snail mail is the opposite.
In both cases, there is expense to both parties. So mere expense doesn't seem to be the issue.
Plus, who cares if it's expensive or cheap to send, all else being equal. Is junk mail no longer protected by free speech if the mailer gets a great deal on recycled paper? So sender expense doesn't seem to be the issue.
This leaves you with recipient expense, and from junk mail cases we know that at a minimum, some recipient expense just has to be borne, basically. So on the one hand, we might ask where the threshold is; how much recipient cost should recipients have to bear? Or we can still credibly consider whether there is a threshold at all.
And how much snail junk mail contains explicit invitations for fake drugs or porn? How much snail junk mail do you get in Japanese or Spanish? Why should I meekly put up with receiving email versions of the same tripe?
If it's fraudulent or deceptive or promotes illegal activities, then it's not going to be protected anyway. But that's true regardless of medium. You're making a great case for attacking fraud on the internet, but not for attacking spam as a whole, some of which isn't like that.
Language is totally irrelevant.
And who said you have to put up with accepting it? Opt out. Or don't accept it. That's not the same as insisting that people not send it in the absence of you making your wishes known.
If it incorporates filter-cracking, it is by definition neither truthful nor forthright.
No, that depends on precisely what's going on. But since you seem to allow for mail that doesn't try to get around filters but nevertheless does, it doesn't seem to be a significant issue right now.
Paper junk mail sent in a manner analogous to filter-evading spam (i.e. Joe Blow knows that a large number or recipients have instructed the post office to not deliver his mailings, so he changes his name to avoid the block) is most certainly not protected.
That's not very analgous. Filters are passive; a spammer has no way of knowing if a recipient has filters, and if so, what they are. All he can do is guess. That's entirely different from being expressly told to not send further mail.
Contradiction in terms, and hence meaningless.
No contradiction. I have been thinking of applying for a new credit card. I have never solicited credit card applications, but I get several per week, and I'd like really favorable ones to arrive, though I'm still not taking any action right now to further this desire.
A perfect example of wanting unsolicited messages.
You should also note that having a modem "wardial" phone numbers is also generally illegal. If you really want to continue your free speech fight, I suggest you set aside the SPAM issue for now and first work on those older wardialling laws. Defend the free speech right to dial 10,000 consecutive phone numbers with your free speech modem tones.
Really? That's odd. I recall a case -- I don't recall the cite right now, sorry -- where it was held to not be illegal, at least under the CFAA, IIRC.
Cite the law, and maybe it'll attract my interest.
the violation of other people's rights
Such as?
Remember, the Court did say that at least some costs imposed on recipients were okay, so there's no blanket rule against sending mail just because it involves some resources on the reciever's end.
Or have you come up with a different right that's involved?
And if I telemarket to you, I still have to call you on your landline, which you pay for, and engage the use of your telephone, which you paid for. You haven't given me permission to do so.
So how is that different?
As for compromised machines, that's illegal whether they're used for spam or not. Don't cloud the issue.
Maybe we're talking about different things.
I use Thunderbird as a mail client, and it has spam filters, but it does receive spam; it just moves the spam into a different folder.
This seems to me to be the equivalent of sorting through one's mail after delivery. I could do it, a secretary could do it, but it's passive on our end from an outsider's perspective, in that third parties aren't privy to what is or isn't filtered.
It's not like having the USPS not accept certain mail.
That's what I mean. What do you mean?
I think the problem here is that avenues of communication are special.
If you have a house, and you have a yard, it is gernally trespassing for people to enter your property, walk across the yard, and to the house. Permission is needed. This applies to pretty much anything they might do, e.g. play frisbee on your yard, or just stand there, admiring your car.
But because society values communication, if someone were to trespass for a communicative purpose, i.e. to go to your front door, knock, and if you answer, to talk to you, we flip things around and consider there to be implicit permission automatically.
The only way to still claim the speaker trespassed would be if you can show there was no such implicit permission, generally either by explicit retraction of permission, or by showing some reason that the implicit permission wouldn't exist under the circumstances (e.g. it's 3 in the morning and the communication wasn't vitally important).
If the use of your computer by the outsider were something other than to send messages to you, then your argument would be a fairly good one. For example, other people can't really claim a first amendment right to use VNC to play games on your computer.
But email -- that works, and so the assumption that people able to receive communication will want to, or at least have the option to reject it themselves, rather than having government decide for them stands.
Spam is generally going to be commercial. There is a first amendment right for commercial speech, and there are two reasons for this. First, that persons in commerce should get a chance to inform the public about what they're doing. And second, that the public has a right to find out. Although the first amendment only speaks of a right by the speaker, in fact it necessarily incorporates a right to listen, lest the speaking right be moot. For government to prevent people from getting to decide on their own whether or not they want to hear an ad is paternalistic and doesn't help to inform the public; it just leaves them in the dark.
With the choice of whether or not to get spam left in the hands of the recipient, we not only adhere to the general policy of encouraging speech generally (regardless of what we think of any specific bit of speech) but also let the recipient decide if some message is spam in his own opinion. We don't force our opinion onto him.
Good cases to look at are Central Hudson, Rowan, and Bolger. They go through a lot of the logic involved. And the same basic debates have played out in cases involving actual door to door solicitation. Generally, these things work out in favor of more speech, not less. Because the guiding principle in free speech issues is that more is better.
Do you represent any of these guys?
No. It remains an abstract issue for me in that respect. The work I do for clients is generally of a more technical nature (register trademarks, write contracts, etc.). We don't all get to argue constitutional issues for a living.
It'd be fun, though.
Filtering on the receiving end is not good enough. I am paying for that bandwidth and, given that 70% of internet traffic is now junk mail, I am subsidising your spammers.
Well, no one is making you receive mail at all. You know or should know that people can send unsolicited mail. Why are you so shocked when they do? The net is ultimately a network of peers, so there's no way to ensure filtering from the sender's end. Filtering at the end, or at a remove from the end (e.g. at an ISP or above) is more or less it.
I think that you might also pursue fraud which happened to be perpetrated by spammers (as opposed to pursuing spammers in their own right) and in practice cut down on some of the volume of spam. But this still isn't a ban on spam.
There is no such recourse with spam,
Is anyone preventing such a recourse from being established? An opt out list seems to be on firmer legal ground than an outright ban.
And while it might be difficult to administer for various reasons, those same difficulties would exist for a ban as well, so it's hardly an argument against opt out. Plus the opt out can be fairly broad -- take a look at how the postal one works.
While one is minimal, it is so easy to do in bulk that it can reach the point that the cost of dealing with it is not negligible. The cost for organisations is even worse, if you deal with hundreds of email accounts mounts up both in time, bandwidth and possibly hardware.
Still, given the importance of protecting speech, I think it's not too great a cost. In fact, personally I don't think there is a cost threshold.
Most spam these days pretty clearly is designed to get around filters.
Not the same thing. It's perfectly okay for junk mailers to send out junk mail in hand-addressed envelopes. This gets past the 'mental filters' of a person sorting through their junk mail, but isn't actually fraudulent or deceptive.
Advertising is supposed to be able to get people's attention; this might happen through initially subtle means. Getting through filters without rising to deceptive levels strikes me as part of that. It's because the filters are too passive, mostly.
But it IS, in fact, inevitable with spam. Anyone with the slightest experience dealing with spam knows that. It's theoretically possible for a spammer to operate without stealing services, but it's not as a practical matter. In order to do that they would have to confine themselves to spamming on spam-friendly networks, which would mean spamming almost no one but each other. No spammer has ever been satisfied with that.
Still not a good reason to attack all spam; you're admitting that they're not coextensive. But you're setting yourself up with a good reason to attack spammers that do engage in practices that are illegal regardless of spam. Think of it as being the equivalent of getting Al Capone for tax evasion.
My general point is that spam is not wrongful by itself. Fraud is, however, whether in the course of spam or not. So are some other things that one might see in specific spam messages. If you go after the bad spammers, that's okay, but it's no excuse to lump the good ones in with them. And if there are no good ones now, then perhaps leaving that niche open and only pursuing the others will encourage some spammers to clean up their act.
And as you damn well know the vast majority of the cost involved there is paid by the junk mailer. Materials, design, printing, postage... and they pay high postage, in effect subsidising the entire postal system. For this they get delivery.
Email spammers often pay nothing whatsoever to send, and never pay any significant fraction of the total transmission cost in any event. Very different situations.
From a legal perspective, there's no relevance to how much senders pay. The free speech rights of junk mailers has nothing to do with their subsidizing the USPS.
There could at least be an argument regarding recipient costs, but the Court has already told us that some recipient costs are okay. And it's arguable that any recipient costs are okay if we don't enter new and weird territory such as harassment (which would involve lots of spam from one source, or multiple sources working together) Plus, even if we do have a cost threshold, we then need to start quantifying it and working out just how it all breaks down across different communications methods.
So you need to come up with an argument that holds water. What you're talking about there isn't useful to you.
Sending millions of emails to random addresses can never be anything but an assault on the email system
Junk mail is sent to millions of random addresses, and it's protected. And it'd remain so, even if the USPS had difficulty delivering it all; it's not the problem of mailers to ensure that the infrastructure can support them.
A DNC list has to be signed up for; it's a way of administering the equivalent of 'no solicitation' signs in a medium that normally doesn't allow for such signs.
But telemarketing is fair game if you don't sign up.
I wouldn't have significant problems with a government-run Do-Not-Spam list.
He's pretty clearly talking about all spammers. Not just the ones that break the rules.
While I have no great sympathy for spammers that defraud people, etc., I am defending those that engage in acceptable business practices and yet still are sending unsolicited commercial email. Email that is not obscured as to origin, that is not fraudulent or deceptive, where opt outs requests are adhered to.
A law that outlawed spam altogether would go too far. Narrow it to people that are acting reprehensibly regardless of communications medium, and if I might remain uncomfortable about endorsing it, I at least might not oppose it.
But of course, remember that virtually every free speech case there is involved breaking a law. A lot of those laws turned out to be unconstitutional, in part because their purpose was to prevent people from saying things that the lawmakers didn't want said.
I think most people attacking spam are doing so chiefly because they don't like any commercial content, and then because they don't like the volume. I think they need stronger reasons than that. If they'd work at it, they could get some, and they'd have a stronger argument.
Being from the UK, I continue to find "no solicitors" amusing. Even more so coming from a lawyer.
Mm. More so, since while lawyers here can all go into court (assuming they're in the appropriate bar or get dispensation), I really only do transactional work in the office, and never litigate. This would make me more of a solicitor than a barrister in practice, although honestly the whole thing you guys have is bizarre. I like the wigs, though.
Anyway...
Enforcement is a gigantic pain in the ass when you start dealing with the architecture of the net, and crossing national borders.
But if we can set aside that huge practical problem that any attempt at regulation would have, I think the issue is just determining how much notice is reasonable.
I think the address is the place for it for the moment. If addresses that have a 'no spam' component added to them (e.g. 'elizabeth2@NOSPAM.gov.uk') are picked up by a spammer, then mail sent to the actual address indicates that someone's removed it, which indicates that they knew or should've known that spam wasn't wanted.
Sadly, this doesn't work well with regards to if the address collector is not the spammer, or if it is collected from somewhere else, guessed, etc.
Redesigning email would be the most effective solution, but at great cost, I fear. The Internet has been very popular in part because it is pretty free wheeling. Architectural changes to get rid of spam strike me as being likely to have massive negative consequences. If an email system where spam is possible is part and parcel of being able to get around censorship imposed by dictatorships, or to allow psuedonymous and anonymous use, then I'd rather just put up with the spam. Better that than a regulated net that's more akin to AOL.
then why are there laws against fax spam and telemarketing to cell phones
Why the laws exist would be lobbying; there's no fundamental rule involving costs.
Why they haven't been overturned, that's the more interesing question. The few courts to look at it do seem to have latched onto the idea, but honestly, I've read the cases, and they seem to be weak. I think they're wrongly decided, and that such laws are unconstitutional. Hopefully future challenges will come along and vindicate my position.
by sending spam to people who've specifically asked not to be spammed
N.b. that I'm not defending that practice.
Because no matter how reprehensible a spammer's actions, some ambulance chaser will see a quick buck (or a reputation) to be made off of defending the spammer's "right" to waste my time and MY fucking bandwidth that I fucking pay for.
Could be. But I think you underestimate that a lot of lawyers have very earnest beliefs in civil liberties. Given the nature of my practice, I'd be very surprised if I ever wound up with a spammer as a client in such a suit; it'd be like going to a dentist for a problem with your liver. So my position here isn't motivated by averice or fame seeking -- I really think that there is a significant first amendment issue at stake.
This crap you're spouting about the cost to both sender and receiver suggests that as long as someone wants to call it "free" speech, then the receiver should have to bear that burden.
No, I'm saying that both incur a burden, and that the burden doesn't matter. And I do have strong support in the caselaw that at least some burdens don't matter, which would mean that in the worst case scenario we merely have to figure out where the threshold is, but that you still couldn't have an absolute ban.
make sure everyone knows that they're violating your right to free speech
No, they're not special cases; they're all the same case. Government can't limit free speech, as would be the case if spam were banned somehow. Every example you have involves private actors. That's a big difference.