Nevermind the "e-" part of it- governments support commerce in general by funding police (and all kinds of related services to reduce crime and disasters), which allow people to hold onto cash money long enough to actually perform commerce.
Are the Wisconsin State Police going to protect an e-commerce server that could be in Kuala Lumpur? No? Then how on earth can they justify taxing its services?
(No, the fact that they protect the computer at the other end doesn't count. That's already covered by the property taxes on the house or business it's sitting in.)
When I hear someone is a D&D player the first thing I think are the phrases "severe family and emotional problems" and "divorced from reality."
When I hear someone say "When I hear someone is a D&D player the first thing I think are the phrases 'severe family and emotional problems' and 'divorced from reality'," the first thing I think are the phrases "severe recto-cranial inversion" and "learned theology from Chick tracts".
I'd expect this sort of stupidity in a country that has the luxury of indulging fat-and-happy bureaucracy, but not so much in a tiny country surrounded by a sea of people who want them all dead.
Nonsense. The spam does not get through by mere happenstance; it gets through because of deliberate action by the spammer to evade the filter security. My analogy holds.
The correct analogy is is I have a doorman who is instructed not to let salesman in, and you are a salesman who disguises himself and identifies himself to the doorman as an invited guest. That's fraud.
Part of the new rules establishing the DNC list put a limitation on how often telemarketers could abandon calls (because they rang too many phones to transfer all the pickups to their operators). They squealed about that almost as loudly as they did about the DNC list itself. Unfortunately for them, the courts (correctly) found that the regulation was a legitimate action to abate a public nuisance, not an infringement upon free speech.
Doesn't sound reasonable to me -- it doesn't work well for identity verification,
It works no more, or less, well than e-mail itself. Thus, either you require a stricter standard of identity verification (in which case spammers would have to apply that stricter standard when verifying that each and every recipient address is not someone who has publicly stated a rejection of spam) or you don't (in which case a Usenet post suffices).
archives are incomplete
If a spammer could show that he was legitimately unable to find the plaintiff's "DO NOT SPAM ME" public notice (which would be trivial -- just do the same search again, and have the court determine that it was a good-faith attempt), he'd be off the hook for that case.
and there's no standard practice of posting to usenet or anywhere else to indicate one's preferences regarding spam.
If the spammer could show that the plaintiff's "DO NOT SPAM ME" public notice statement was unclear, he'd be off the hook for that case.
None of your objections poses a real obstacle to a spammer who was actually operating in good faith.
Really, it's several orders of magnitude harder to check whether a given person has a relevant entry in the "Legal Notices" section of the newspaper -- and yet these notices are, er, legal.
Spammers' right to send spam in the absence of notice in no way impairs recipients from filtering spam as they please.
Well, now, I'm glad that we're in complete agreement -- spammers' rights end at the point they do impair recipients from filtering spam as they please (i.e. when they deliberately attempt to evade filters).
You seem to be arguing that spammers have the right to send me their crap, but I don't have the right to easily get rid of it. I can't agree with that.
Oh no, that's absolutely not what I'm saying.
Oh, no, that is precisely what you are saying, given your refusal to punish spammers who crack their way past filtering.
The that position, if applied to the real world, would require that homeowners install bank-vault levels of security (since it would be perfectly legal to try to pick the locks as long as nobody specifically told you to stop, and thus the locks would have to resist unimpeded assault for the length of the homeowner's maximum anticipated absence).
But unless they're coordinating, it's wrong to hold one spammer responsible for what others do.
The law considers the effect of aggregated independent acts all the time. For instance, it wouldn't matter a damn bit if I throw an apple core on the sidewalk, but the city would be a mess if we let everybody do so -- and thus we have littering laws, and Mister Policeman will be quite unimpressed if I try to argue that my one little apple core is insignificant.
If the Fuller Brush Man arrives in town one day, doesn't know anyone, never been there before, how can he possibly know that you don't want to see him?
He can ask. Duh.
It is trivially easy to "ask" on the Internet (e.g. do a Google search of Usenet postings for a given author and the word "spam", and examine the results for statements indicating unwillingness to receive same). It is thus perfectly reasonable to require a spammer to do this for each and every address he wishes to mail (just as we require a door-to-door salesman to take a moment to look for a "NO SOLICITORS" sign at each and every house).
Actually, having a filter could only be at most rejection of the spam that matches the filter; it lets the rest through, after all, and the recipient designed the filter, and could make it as strict or loose as he wanted.
This is equivalent to asserting that locking your front door constitutes rejection of only those burglars who are insufficiently skilled to pick the lock or insufficiently strong to knock it down.
It's the equivalent of receiving real mail and junk mail and tossing it in the shredder if it appears to be junk mail. The sender doesn't know why it is that you don't respond to his advertising, just that you're a tough nut to crack. Natural variation in the junk mail, to find something that might get a response (such as junk mail in the hand addressed envelope) is hardly being sent contrary to notice.
The assertion that spammers don't know that many of their targets are actively attempt to reject their spew, and are simply using "v!a&r@" and kilobytes or random text for the purpose of drawing human attention (as opposed to for the purpose of bypassing security measures) is preposterous on its face. It is, as I said, tantamount to claiming that you did not intend to trespass after being caught sneaking over a fence at 3 AM wearing a ninja suit and night-vision goggles.
Ditto if you hang up on telemarketing calls when you hear the telltale silence at the beginning of the call, because their system dialed in anticipation of having an operator ready to talk.
I note that the government has (quite correctly) imposed regulations on that practice in an attempt to abate a public nuisance. It is well-settled law that the creation of a public nuisance in the process of conveying a message is not protected free speech.
But in the rare instance of communication, implicit permission to enter for the sake of communication can defeat prima face trespass, based in part upon what it was reasonable for the putative trespasser to know at the time.
The fact that spammers use filter-evasion techniques proves that they are knowingly and deliberately trespassing against the prior prohibition of the property owner. Thus, your argument supports my position that filter evasion should, like other forms of computer cracking undertaken without express consent, be prohibited.
If you agree to accept spam, by virtue of having an email account
Nope. Having a filter on an e-mail account is a quite unambigous refusal to accept spam. Therefore, attempts to evade filtering ought to be treated like any other attempt to trespass on private property (the existing penalties for other computer-cracking crimes seem about right).
Again, your silly argument that the spammer is not "on notice" is refuted by the very existence of filter-evasion techniques. (Oh, and you never did get back to me on whether I can count on you to present a "he didn't know he was trespassing" defense if I get caught sneaking in somewhere wearing a black ninja suit and night-vision goggles.)
Apparently Patrick Leahy is ignoring just how easy it is to move phishing opperations off shore.
The host computer can be moved offshore, but the phisher himself can still be nabbed as long as he stays in the US (or a country with an extradition treaty). As a few people pointed out on spammer thread the other day, not many of the crooks are willing to actually go live in Elbonia so they can hide from the law.
I think if people realized the real costs of spam, we'd have a few murders of spammers
I am honestly surprised that we haven't heard of this happening yet. When you harass millions of random people, you're bound to hit a few who are four-sigma or more on the lower end of the "self-control" bell curve.
Sooner or later, somebody in that demographic is going to (for example) lose an important message to spam-induced overflow, and snap.
You're just digging yourself deeper and deeper. By this standard, a fence built just inside your property line (which, legally, is where it has to be if the other side of the line is public/unowned property) is not a "security measure", since someone who touches the fence is already on your property.
I don't think filtering is enough to reverse the presumption in favor of spam.
There is no such presumption. Your assertions to the contrary notwithstanding, "free speech" claims do not supercede private property rights.
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.
Nonsense. If any of these statements were true, he would either not use filter-evasion techniques at all, or would not be able to create a filter-evasion technique capable of being recognized as such (e.g. if spammers didn't know anything about Bayesian filtering, they would never have gotten the idea of appending blocks of gibberish text).
If I ever take it into my head to sneak into someone's private property and get caught wearing a black ninja suit and night vision goggles, I want you for my lawyer. I'll need someone who can tell the court with a straight face that I simply didn't know that I was trespassing.
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?
If it can be shown that she did so deliberately (which is trivial in the case of spammers -- there's just no other credible explanation for systematic misspellings of commonly-triggered words, blocks of anti-filtering random text, etc), then, yes, she broke the law. Whether you want to bring a complaint is your concern (a modest threshold of a few dozen complaints ought to adequately identify cases worthy of police attention).
I don't think email filtering is a security measure.
Nonsense; it is a defense of a private property boundary. What else could it possibly be?
As for the nonsense about 'stealing resources' I think I've successfully attacked that enough today.
LOL -- about as "successfully" as the Black Knight attacked Arthur. I suppose I'd best retreat before you bite off my knees.
If the cost incurred by the receiver has no legal significance, then why are there laws against fax spam and telemarketing to cell phones?
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.
By this argument, a prohibition against applying grafitti to somebody's house is "unconstitutional" (if the recipient doesn't like it, he can just paint over it -- hey, he has to paint his house from time to time anyway, so it doesn't really cost him anything but a minor adjustment to his schedule).
I think it's easier to have email automatically filtered
Again, that's fine so long as attempting to bypass your e-mail filter is treated just like attempting to bypass any other form of computer security.
Either accept that users have the right to filter their e-mail (and thus a right to have people who sabotage their filtering punished), or accept that this argument is a smoke screen.
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.
The junk fax cases have already settled this issue -- deliberate (on the sender side) and involuntary (on the recipient side) cost-shifting from sender to recipient makes it theft of service, not free speech.
Personally, I think that filtering on the receiving end is good enough.
I will accept that IF the filtering is backed by laws that treat attempts to evade the filtering the same way the law already treats other attempts to crack past computer security in order to gain unauthorized access.
Jaynes' attorney, David A. Oblon, had argued that the spamming was not conducted in Virginia and that there was no evidence that e-mails were unsolicited.
It's trivial to prove the mail solicited, show the confirmations. You have to talk to everyone that received the mail (or at least a representative sample) to show that they're not unsolicited.
Of course, the burden of proof in the Anglo-American system is on the state to prove guilt rather than on the defendant to prove innocence.
That said, the volume and content of the mail is pretty damning evidence that it was unsolicited -- the notion that millions of people actively seek out this stuff is absurd on its face. Once that evidence is on the table, then, yes, the defendant almost certainly does need to show proof that the mail was indeed solicited (or cast reasonable doubt upon the claim that he was the one who sent it) in order to rebut this proof of his guilt.
Hey, you're the one who drew a distinction between deceiving the end recipient of the mail (user-level filtering) and deceiving the post office (ISP-level filtering). If you're dropping your own analogy, I have no idea what argument you are attempting to advance.
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I'd say they're taxing my patience, but I don't want to give them any ideas.
Are the Wisconsin State Police going to protect an e-commerce server that could be in Kuala Lumpur? No? Then how on earth can they justify taxing its services?
(No, the fact that they protect the computer at the other end doesn't count. That's already covered by the property taxes on the house or business it's sitting in.)
When I hear someone say "When I hear someone is a D&D player the first thing I think are the phrases 'severe family and emotional problems' and 'divorced from reality'," the first thing I think are the phrases "severe recto-cranial inversion" and "learned theology from Chick tracts".
I'd expect this sort of stupidity in a country that has the luxury of indulging fat-and-happy bureaucracy, but not so much in a tiny country surrounded by a sea of people who want them all dead.
Nonsense. The spam does not get through by mere happenstance; it gets through because of deliberate action by the spammer to evade the filter security. My analogy holds.
The correct analogy is is I have a doorman who is instructed not to let salesman in, and you are a salesman who disguises himself and identifies himself to the doorman as an invited guest. That's fraud.
Part of the new rules establishing the DNC list put a limitation on how often telemarketers could abandon calls (because they rang too many phones to transfer all the pickups to their operators). They squealed about that almost as loudly as they did about the DNC list itself. Unfortunately for them, the courts (correctly) found that the regulation was a legitimate action to abate a public nuisance, not an infringement upon free speech.
It works no more, or less, well than e-mail itself. Thus, either you require a stricter standard of identity verification (in which case spammers would have to apply that stricter standard when verifying that each and every recipient address is not someone who has publicly stated a rejection of spam) or you don't (in which case a Usenet post suffices).
archives are incomplete
If a spammer could show that he was legitimately unable to find the plaintiff's "DO NOT SPAM ME" public notice (which would be trivial -- just do the same search again, and have the court determine that it was a good-faith attempt), he'd be off the hook for that case.
and there's no standard practice of posting to usenet or anywhere else to indicate one's preferences regarding spam.
If the spammer could show that the plaintiff's "DO NOT SPAM ME" public notice statement was unclear, he'd be off the hook for that case.
None of your objections poses a real obstacle to a spammer who was actually operating in good faith.
Really, it's several orders of magnitude harder to check whether a given person has a relevant entry in the "Legal Notices" section of the newspaper -- and yet these notices are, er, legal.
Well, now, I'm glad that we're in complete agreement -- spammers' rights end at the point they do impair recipients from filtering spam as they please (i.e. when they deliberately attempt to evade filters).
Oh no, that's absolutely not what I'm saying.
Oh, no, that is precisely what you are saying, given your refusal to punish spammers who crack their way past filtering.
The that position, if applied to the real world, would require that homeowners install bank-vault levels of security (since it would be perfectly legal to try to pick the locks as long as nobody specifically told you to stop, and thus the locks would have to resist unimpeded assault for the length of the homeowner's maximum anticipated absence).
The law considers the effect of aggregated independent acts all the time. For instance, it wouldn't matter a damn bit if I throw an apple core on the sidewalk, but the city would be a mess if we let everybody do so -- and thus we have littering laws, and Mister Policeman will be quite unimpressed if I try to argue that my one little apple core is insignificant.
He can ask. Duh.
It is trivially easy to "ask" on the Internet (e.g. do a Google search of Usenet postings for a given author and the word "spam", and examine the results for statements indicating unwillingness to receive same). It is thus perfectly reasonable to require a spammer to do this for each and every address he wishes to mail (just as we require a door-to-door salesman to take a moment to look for a "NO SOLICITORS" sign at each and every house).
This is equivalent to asserting that locking your front door constitutes rejection of only those burglars who are insufficiently skilled to pick the lock or insufficiently strong to knock it down.
It's the equivalent of receiving real mail and junk mail and tossing it in the shredder if it appears to be junk mail. The sender doesn't know why it is that you don't respond to his advertising, just that you're a tough nut to crack. Natural variation in the junk mail, to find something that might get a response (such as junk mail in the hand addressed envelope) is hardly being sent contrary to notice.
The assertion that spammers don't know that many of their targets are actively attempt to reject their spew, and are simply using "v!a&r@" and kilobytes or random text for the purpose of drawing human attention (as opposed to for the purpose of bypassing security measures) is preposterous on its face. It is, as I said, tantamount to claiming that you did not intend to trespass after being caught sneaking over a fence at 3 AM wearing a ninja suit and night-vision goggles.
Ditto if you hang up on telemarketing calls when you hear the telltale silence at the beginning of the call, because their system dialed in anticipation of having an operator ready to talk.
I note that the government has (quite correctly) imposed regulations on that practice in an attempt to abate a public nuisance. It is well-settled law that the creation of a public nuisance in the process of conveying a message is not protected free speech.
But in the rare instance of communication, implicit permission to enter for the sake of communication can defeat prima face trespass, based in part upon what it was reasonable for the putative trespasser to know at the time.
The fact that spammers use filter-evasion techniques proves that they are knowingly and deliberately trespassing against the prior prohibition of the property owner. Thus, your argument supports my position that filter evasion should, like other forms of computer cracking undertaken without express consent, be prohibited.
Nope. Having a filter on an e-mail account is a quite unambigous refusal to accept spam. Therefore, attempts to evade filtering ought to be treated like any other attempt to trespass on private property (the existing penalties for other computer-cracking crimes seem about right).
Again, your silly argument that the spammer is not "on notice" is refuted by the very existence of filter-evasion techniques. (Oh, and you never did get back to me on whether I can count on you to present a "he didn't know he was trespassing" defense if I get caught sneaking in somewhere wearing a black ninja suit and night-vision goggles.)
The host computer can be moved offshore, but the phisher himself can still be nabbed as long as he stays in the US (or a country with an extradition treaty). As a few people pointed out on spammer thread the other day, not many of the crooks are willing to actually go live in Elbonia so they can hide from the law.
I am honestly surprised that we haven't heard of this happening yet. When you harass millions of random people, you're bound to hit a few who are four-sigma or more on the lower end of the "self-control" bell curve.
Sooner or later, somebody in that demographic is going to (for example) lose an important message to spam-induced overflow, and snap.
You're just digging yourself deeper and deeper. By this standard, a fence built just inside your property line (which, legally, is where it has to be if the other side of the line is public/unowned property) is not a "security measure", since someone who touches the fence is already on your property.
I don't think filtering is enough to reverse the presumption in favor of spam.
There is no such presumption. Your assertions to the contrary notwithstanding, "free speech" claims do not supercede private property rights.
Nonsense. If any of these statements were true, he would either not use filter-evasion techniques at all, or would not be able to create a filter-evasion technique capable of being recognized as such (e.g. if spammers didn't know anything about Bayesian filtering, they would never have gotten the idea of appending blocks of gibberish text).
If I ever take it into my head to sneak into someone's private property and get caught wearing a black ninja suit and night vision goggles, I want you for my lawyer. I'll need someone who can tell the court with a straight face that I simply didn't know that I was trespassing.
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?
If it can be shown that she did so deliberately (which is trivial in the case of spammers -- there's just no other credible explanation for systematic misspellings of commonly-triggered words, blocks of anti-filtering random text, etc), then, yes, she broke the law. Whether you want to bring a complaint is your concern (a modest threshold of a few dozen complaints ought to adequately identify cases worthy of police attention).
I don't think email filtering is a security measure.
Nonsense; it is a defense of a private property boundary. What else could it possibly be?
As for the nonsense about 'stealing resources' I think I've successfully attacked that enough today.
LOL -- about as "successfully" as the Black Knight attacked Arthur. I suppose I'd best retreat before you bite off my knees.
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.
By this argument, a prohibition against applying grafitti to somebody's house is "unconstitutional" (if the recipient doesn't like it, he can just paint over it -- hey, he has to paint his house from time to time anyway, so it doesn't really cost him anything but a minor adjustment to his schedule).
Again, that's fine so long as attempting to bypass your e-mail filter is treated just like attempting to bypass any other form of computer security.
Either accept that users have the right to filter their e-mail (and thus a right to have people who sabotage their filtering punished), or accept that this argument is a smoke screen.
The junk fax cases have already settled this issue -- deliberate (on the sender side) and involuntary (on the recipient side) cost-shifting from sender to recipient makes it theft of service, not free speech.
I will accept that IF the filtering is backed by laws that treat attempts to evade the filtering the same way the law already treats other attempts to crack past computer security in order to gain unauthorized access.
It's trivial to prove the mail solicited, show the confirmations. You have to talk to everyone that received the mail (or at least a representative sample) to show that they're not unsolicited.
Of course, the burden of proof in the Anglo-American system is on the state to prove guilt rather than on the defendant to prove innocence.
That said, the volume and content of the mail is pretty damning evidence that it was unsolicited -- the notion that millions of people actively seek out this stuff is absurd on its face. Once that evidence is on the table, then, yes, the defendant almost certainly does need to show proof that the mail was indeed solicited (or cast reasonable doubt upon the claim that he was the one who sent it) in order to rebut this proof of his guilt.
Hey, you're the one who drew a distinction between deceiving the end recipient of the mail (user-level filtering) and deceiving the post office (ISP-level filtering). If you're dropping your own analogy, I have no idea what argument you are attempting to advance.