I don't see the clause in the First Amendment that allows it to trump my private property rights. Maybe I need a good pair of Penumbral Emanation Spectacles.
Nope. A TeleZapper does not prevent a telespammer from ringing your phone (as a NO SOLICITORS sign prevents solicitors from knocking on your door).
Mind you, if it did work the same way (a telespammer who called a TeleZapper-equipped phone could be arrested for trespassing without further ado), I'd consider the merits of your suggestion....
Unfortunately it can't really prove that in light of the fact that a filter is NOT an express prohibition. The filter sits on the user's computer, generally. How is that expressly telling the spammer anything?
This level of spammer apologia is reaching, even for you. The simple fact is that the use of techniques that can be clearly identified as attempts to circumvent a spam filter is strong evidence that the spammer knew, without being explicitly told by any of his victims, that he was trespassing.
This criterion neatly solves any question of defining "spam". There's no need to decide exactly how many messages constitutes "bulk", what sort of invitation makes a message either explicitly or implicitly "solicited", etc. Honest e-mail would have no forged headers, no munged words, no random junk to evade checksumming against known spam, etc. Spam that does not use these techniques would be easily filtered out. Spam that does use these techniques gets the spammer thrown in jail for cracking. End of problem.
The thing is, most dentists who want to drum up business do so by placing adds in yellowpages, on TV, radio or in newspapers.
If a dentist needs to resort to telepestering to drum up business, that's a good indication that his ministrations will cause your teeth to rot and fall out after months of agony.
The first generation of low-flow toilets quite simply did not work. They've improved since then, but the bad odor lingers over them (figuratively, not literally).
Uh, oh, Tom -- Captain Kangarooski has just given you an iron-clad proof that you do have to put up a "GRAFITTI ON MY WALLS NOT WANTED" (unless, of course, you do want people to break in and put grafitti on your walls).
Grafitti is, after all, undeniable a form of speech....
That's really not too relevant. We have an enormous commitment to free speech. Door to door religious missionaries surely know the same thing. Yet their actions are entirely legal in the absence of actual or constructive knowledge as pertaining to particular individuals. The generic likelihood though isn't enough in the case of speech.
If this absurd argument were correct, it would be legal to run a bullhorn on a residential street at 3 AM unless and until enough (all?) of the residents of the street specifically and individually asked you to stop. It isn't. QED.
True but as you note, there are exceptions. Spam qualifies for one -- the fact that you have a door is an implicit invitation for people to do what would otherwise be trespass in order to knock on it and talk to you.
The burden is on the would-be visitor to check for NO TRESPASSING signs. Spammers have not made even the most cursory attempt (e.g. Google each e-mail address to check for a do-not-spam statement in a Usenet sig) to do so.
You can affirmatively reject these permissions, but the assumption in our society is that if you're able to receive communications, you're inviting communications.
From how many different directions can you march off the "3 AM bullhorns are protected by the First Amendment" cliff?
But it doesn't threaten honest spammers
Nor does it threaten unicorns, leprechauns, or Santa Claus.
I've been sent junk mail that looked like some other kind of mail but didn't actually rise to the level of being deceptive.
It's customary to insert much more padding than that between mutually exclusive assertions.
Advertising around filters is legal as long as a HUMAN BEING isn't deceived.
The one and only relevant issue is that the use of filter-evasion techniques (including the obfuscation of words that are commonly known to be indicative of spam) proves beyond reasonable doubt that the spammer is deliberately attempting to intrude upon private property against the express prohibition of the owner. That needs to be prosecuted and punished just like any similar trespass (i.e. the existing computer cracking laws should be explicitly applied to this type of electronic intrusion).
That's very different from someone physically trying to hack your box to get an e-mail through.
No, it's not -- both are deliberate attempts to circumvent a barrier that I have placed around my private property in order to protect it from unauthorized use.
(And what the devil do you mean "physically trying to hack your box to get an e-mail through"? Have spammers started resorting to black-box jobs to open people's computers and directly write spam onto their hard drives?)
The example you provided is easy to filter out as well.
I can only conclude that you are being deliberately obtuse. The specific example I provided is one of millions of possibilities, all of which must be detectable by a filter (without generating false positives from other ordinary phrases).
Even if I do have a filter that is up to the job, the fact is that the spammer is attempting to force his junk past my barriers (i.e. he is attempting a form of computer cracking or a form of breaking and entering, whichever analogy you prefer). Attempting to commit these offenses is itself illegal, even if you don't succeed, and properly so.
the majority of spam is easy avoid/filter with a little effort
The majority of would-be thieves are easy to avoid/foil with a little effort (don't forget to lock your doors, keep low-level windows closed and properly maintained, maybe install an alarm system).
In the real world, these measures are backed up by laws against attempts to circumvent them. If they weren't -- if crooks could work at your lock all day without having to bother concealing themselves -- people would need bank-vault security just so their stuff would still be there when they got home. The same principle should be applied here: combine self-defense with legal backing for self-defense.
So if someone is pissing through our letterbox, the libertarian response is "Get a bucket", rather than stop the person pissing through the letterbox.
The response from an adolescent anti-authoritarian is "Get a bucket".
The response from a real libertarian is that the pisser is violating property rights, and should be stopped from continuing to do so and punished for having already done so.
And how, pray tell, are spammers supposed to know that you don't want them unless you tell them so
1. They know perfectly well that the probability that everyone they target wants their stuff is on a par with the probability that all the oxygen molecules in the room will happen to randomly cluster in the far corner. Given that the standard of American law is "reasonable doubt", that's quite sufficient to establish that spamming per se is intentional trespass.
2. The usual standard for using someone else's private property is "permission must be granted first", not "you have permission until and unless it is explicitly refused". There are exceptions in cases of strong need or reasonable reason to believe that the owner won't mind, neither of which is remotely applicable to spamming.
Which gets us into the problem of what sorts of notice are reasonable and what sorts are not.
This is another advantage of my suggestion (to focus the legal angle on circumvention of spam filters rather than on spamming itself). When someone sends a bulk e-mail with forged headers to advertise "herb@l V1AGRA", it's clear on the face of it that he knew that the mail would be filtered if he had sent it with honest headers and not obfuscated the words "herbal VIAGRA". Thus, there is no question of whether or not the spammer had been put on notice that he wasn't supposed to send spam to any given person; he's already revealed that he knew that some of his targets did not want his mail and had taken active steps to reject it.
I would also make it an offense for a spammer to actively try to break/circumvent a filter and forcably cram their junk into people's mailbox, but that isn't happening
Nonsense, it happens constantly (e.g. "herb@l v1agr@").
My suggestion, in the context of your analogy, would be to allow people to put a combination lock on their mailboxes if mailbox-shitting became a problem
Would you make it a criminal offense to pick the lock? That's how it is in the real world, and how it should be in the case of spam (via a clear legal doctrine equating the circumvention of spam filters with the circumvention of any other form of computer security).
Nice, but it doesn't need to be lethal - just make it bad enough that it makes the news. TRICKY PART: get the media to point the finger at spam in general, not just your actions.
That's the most likely spin if it looks like incompetence (i.e. the fly-by-night operation screwed up the penis pill formula) rather than malice.
Actually, given the sort of money-grubbing sociopaths that we're talking about, I wouldn't be surprised if this actually happened (by a real accident, not a deliberate plot to frame and discredit spammers).
As long as people can do something about the crap that comes into their e-mail box, they should be encouraged to do so.
By this logic, there should be no laws against people literally dropping trou, backing up into position, and dumping crap into other people's mailboxes. The owner can just hose it out, after all.
Civilized societies have locks and laws against theft and trespass. The same principle applies here.
If you left your house door open and somebody entered and made a mess in your house (or worse!) then who is to blame? Who is at fault?
The person who entered your house is at fault, obviously.
Do you also subscribe to the "she had it coming, going out in public dressed like that" school of rapist defense? If not, how do you distinguish between the two cases?
If you have a lock available to you then you use it.
In most jurisdictions, lockpicking in order to gain unauthorized access to other people's private property is a crime in itself. (It's the "breaking" component of "breaking and entering". If the cops catch you before you actually get in, the law presumes intent to enter, and you are charged with attempted breaking and entering.). The same principle should apply to spam -- filter circumvention is a form of cracking, and should be punished as such.
It is not easy to argue that spam (and junk snail mail for that matter) represents an initiation of force.
That's another advantage to my proposal that the laws should be focused, not on spamming per se, but on the use of filter-circumvention techniques (which should be prohibited just as other forms of computer cracking are prohibited).
The distinction between spamming and normal e-mail is sufficiently fuzzy at the edges (e.g. what constitutes "bulk"?) to give your position a grain of plausibility. However, a mailing that is tailored to get past spam filtering (e.g. forged headers, munging of "spammy" words) is equivalent to lock-picking one's way onto other people's property, and as such is a clearcut initiation of force.
Precisely. There is a legitimate argument that state intervention would be ineffective against spam, or that politicians would use the guise of spam-fighting to further another agenda, but (assuming that you believe that there ought to be a government at all) there is no basic philosophical problem with the idea.
The ineffectiveness and hidden-agenda arguments indicate a need to monitor and prod the government (so what else is new?). However, if they are considered a fatal objection, then they are a fatal objection to any government action, and we're back to anarchism (not that there's anything wrong with that).
For example, the state can make it illegal to forge headers or use non-existent return addresses. It could require all UCE to be sent from a server registered or traceable to the sender. It could formally codify the SMTP protocol, and specify what constitutes fraudulent use of it.
In general, the laws should make it clear and explicit that circumvention of a spam filter is a form of unauthorized intrusion to which the standard computer-cracking laws apply.
This approach avoids the difficulty of defining spam/UCE so as to distinguish guilty spam from innocent error -- people who make innocent errors do not use filter-evasion tricks; people who use filter-evasion tricks have thereby provided prima facie proof of intent to steal other people's bandwidth.
But that's the point - telemarketing is by far the *most* successful selling method out there.
Stealing is the *most* successful *buying* method out there -- 0% down, with 0 monthly payments of $0. By your "logic", it ought to be legalized.
What the hell are these people going to do??
There are many professions more honorable and respectable than telephone spamming, such as turning tricks or selling crack.
There are 4 million people - 4 million people - doing these jobs, and when telemarketing goes, their age and skillset does not license itself to easy retraining.
Let them get legitimate jobs. If my two previous suggestions aren't sufficient, I can think of plenty of others.
Even if they are profoundly learning-disabled, and thus stuck with no skills other than talking to people on the phone, they can work for incoming call centers.
Worst of all, no studies have been done at either the Federal or the state level as to the impact of all of this.
The "broken window fallacy" underlying your entire argument has been understood for a century and a half. No need for additional studies.
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This is equivalent to asserting that if you don't want solicitors knocking on your door, you should go live in the Unabomber shack.
That's why people have private phone numbers, so they aren't bothered.
What penalty do you think should be meted out to telespammers who use sequential dialing and connect to unlisted numbers?
I don't see the clause in the First Amendment that allows it to trump my private property rights. Maybe I need a good pair of Penumbral Emanation Spectacles.
Mind you, if it did work the same way (a telespammer who called a TeleZapper-equipped phone could be arrested for trespassing without further ado), I'd consider the merits of your suggestion....
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This level of spammer apologia is reaching, even for you. The simple fact is that the use of techniques that can be clearly identified as attempts to circumvent a spam filter is strong evidence that the spammer knew, without being explicitly told by any of his victims, that he was trespassing.
This criterion neatly solves any question of defining "spam". There's no need to decide exactly how many messages constitutes "bulk", what sort of invitation makes a message either explicitly or implicitly "solicited", etc. Honest e-mail would have no forged headers, no munged words, no random junk to evade checksumming against known spam, etc. Spam that does not use these techniques would be easily filtered out. Spam that does use these techniques gets the spammer thrown in jail for cracking. End of problem.
Impossible, since it's the exact same argument -- you don't have the right to use other people's private property without permission.
I'll explain this in words of one syllable:
IT'S MY PHONE
If a dentist needs to resort to telepestering to drum up business, that's a good indication that his ministrations will cause your teeth to rot and fall out after months of agony.
The first generation of low-flow toilets quite simply did not work. They've improved since then, but the bad odor lingers over them (figuratively, not literally).
OK, you heard the man. When you call ATA, make sure you offer to sell them some of the stuff in your garage.
Grafitti is, after all, undeniable a form of speech....
If this absurd argument were correct, it would be legal to run a bullhorn on a residential street at 3 AM unless and until enough (all?) of the residents of the street specifically and individually asked you to stop. It isn't. QED.
True but as you note, there are exceptions. Spam qualifies for one -- the fact that you have a door is an implicit invitation for people to do what would otherwise be trespass in order to knock on it and talk to you.
The burden is on the would-be visitor to check for NO TRESPASSING signs. Spammers have not made even the most cursory attempt (e.g. Google each e-mail address to check for a do-not-spam statement in a Usenet sig) to do so.
You can affirmatively reject these permissions, but the assumption in our society is that if you're able to receive communications, you're inviting communications.
From how many different directions can you march off the "3 AM bullhorns are protected by the First Amendment" cliff?
But it doesn't threaten honest spammers
Nor does it threaten unicorns, leprechauns, or Santa Claus.
I've been sent junk mail that looked like some other kind of mail but didn't actually rise to the level of being deceptive.
It's customary to insert much more padding than that between mutually exclusive assertions.
Advertising around filters is legal as long as a HUMAN BEING isn't deceived.
The one and only relevant issue is that the use of filter-evasion techniques (including the obfuscation of words that are commonly known to be indicative of spam) proves beyond reasonable doubt that the spammer is deliberately attempting to intrude upon private property against the express prohibition of the owner. That needs to be prosecuted and punished just like any similar trespass (i.e. the existing computer cracking laws should be explicitly applied to this type of electronic intrusion).
No, it's not -- both are deliberate attempts to circumvent a barrier that I have placed around my private property in order to protect it from unauthorized use.
(And what the devil do you mean "physically trying to hack your box to get an e-mail through"? Have spammers started resorting to black-box jobs to open people's computers and directly write spam onto their hard drives?)
The example you provided is easy to filter out as well.
I can only conclude that you are being deliberately obtuse. The specific example I provided is one of millions of possibilities, all of which must be detectable by a filter (without generating false positives from other ordinary phrases).
Even if I do have a filter that is up to the job, the fact is that the spammer is attempting to force his junk past my barriers (i.e. he is attempting a form of computer cracking or a form of breaking and entering, whichever analogy you prefer). Attempting to commit these offenses is itself illegal, even if you don't succeed, and properly so.
the majority of spam is easy avoid/filter with a little effort
The majority of would-be thieves are easy to avoid/foil with a little effort (don't forget to lock your doors, keep low-level windows closed and properly maintained, maybe install an alarm system).
In the real world, these measures are backed up by laws against attempts to circumvent them. If they weren't -- if crooks could work at your lock all day without having to bother concealing themselves -- people would need bank-vault security just so their stuff would still be there when they got home. The same principle should be applied here: combine self-defense with legal backing for self-defense.
The response from an adolescent anti-authoritarian is "Get a bucket".
The response from a real libertarian is that the pisser is violating property rights, and should be stopped from continuing to do so and punished for having already done so.
1. They know perfectly well that the probability that everyone they target wants their stuff is on a par with the probability that all the oxygen molecules in the room will happen to randomly cluster in the far corner. Given that the standard of American law is "reasonable doubt", that's quite sufficient to establish that spamming per se is intentional trespass.
2. The usual standard for using someone else's private property is "permission must be granted first", not "you have permission until and unless it is explicitly refused". There are exceptions in cases of strong need or reasonable reason to believe that the owner won't mind, neither of which is remotely applicable to spamming.
Which gets us into the problem of what sorts of notice are reasonable and what sorts are not.
This is another advantage of my suggestion (to focus the legal angle on circumvention of spam filters rather than on spamming itself). When someone sends a bulk e-mail with forged headers to advertise "herb@l V1AGRA", it's clear on the face of it that he knew that the mail would be filtered if he had sent it with honest headers and not obfuscated the words "herbal VIAGRA". Thus, there is no question of whether or not the spammer had been put on notice that he wasn't supposed to send spam to any given person; he's already revealed that he knew that some of his targets did not want his mail and had taken active steps to reject it.
Nonsense, it happens constantly (e.g. "herb@l v1agr@").
Would you make it a criminal offense to pick the lock? That's how it is in the real world, and how it should be in the case of spam (via a clear legal doctrine equating the circumvention of spam filters with the circumvention of any other form of computer security).
That's the most likely spin if it looks like incompetence (i.e. the fly-by-night operation screwed up the penis pill formula) rather than malice.
Actually, given the sort of money-grubbing sociopaths that we're talking about, I wouldn't be surprised if this actually happened (by a real accident, not a deliberate plot to frame and discredit spammers).
By this logic, there should be no laws against people literally dropping trou, backing up into position, and dumping crap into other people's mailboxes. The owner can just hose it out, after all.
Civilized societies have locks and laws against theft and trespass. The same principle applies here.
The person who entered your house is at fault, obviously.
Do you also subscribe to the "she had it coming, going out in public dressed like that" school of rapist defense? If not, how do you distinguish between the two cases?
If you have a lock available to you then you use it.
In most jurisdictions, lockpicking in order to gain unauthorized access to other people's private property is a crime in itself. (It's the "breaking" component of "breaking and entering". If the cops catch you before you actually get in, the law presumes intent to enter, and you are charged with attempted breaking and entering.). The same principle should apply to spam -- filter circumvention is a form of cracking, and should be punished as such.
That's another advantage to my proposal that the laws should be focused, not on spamming per se, but on the use of filter-circumvention techniques (which should be prohibited just as other forms of computer cracking are prohibited).
The distinction between spamming and normal e-mail is sufficiently fuzzy at the edges (e.g. what constitutes "bulk"?) to give your position a grain of plausibility. However, a mailing that is tailored to get past spam filtering (e.g. forged headers, munging of "spammy" words) is equivalent to lock-picking one's way onto other people's property, and as such is a clearcut initiation of force.
The ineffectiveness and hidden-agenda arguments indicate a need to monitor and prod the government (so what else is new?). However, if they are considered a fatal objection, then they are a fatal objection to any government action, and we're back to anarchism (not that there's anything wrong with that).
In general, the laws should make it clear and explicit that circumvention of a spam filter is a form of unauthorized intrusion to which the standard computer-cracking laws apply.
This approach avoids the difficulty of defining spam/UCE so as to distinguish guilty spam from innocent error -- people who make innocent errors do not use filter-evasion tricks; people who use filter-evasion tricks have thereby provided prima facie proof of intent to steal other people's bandwidth.
Stealing is the *most* successful *buying* method out there -- 0% down, with 0 monthly payments of $0. By your "logic", it ought to be legalized.
What the hell are these people going to do??
There are many professions more honorable and respectable than telephone spamming, such as turning tricks or selling crack.
There are 4 million people - 4 million people - doing these jobs, and when telemarketing goes, their age and skillset does not license itself to easy retraining.
Let them get legitimate jobs. If my two previous suggestions aren't sufficient, I can think of plenty of others.
Even if they are profoundly learning-disabled, and thus stuck with no skills other than talking to people on the phone, they can work for incoming call centers.
Worst of all, no studies have been done at either the Federal or the state level as to the impact of all of this.
The "broken window fallacy" underlying your entire argument has been understood for a century and a half. No need for additional studies.
You mean that isn't how it is normally?