They did. The judge ignored those arguments, and relied exclusively upon the argument that the FTC lacked a proper grant of jurisdiction from Congress.
That is, the judge found the following argument to be more persuasive that the telemarketers' Constitutional claims:
"Congress Says: EPA, go investigate whether people are dumping Yuengling Beer without following safe procedures for disposal of toxic waste. You are hereby allocated a budget of $X million for that purpose."
"Congress Says: DOD, develop an improved Predator drone that can sky-write "I Gotcher 72 Virgins Right Here!" before launching a Hellfire. You are hereby allocated a budget of $Y million for that purpose."
"FTC, collect the phone numbers of people who do not want unsolicited sales calls and fine telemarketers who call those people. You are hereby allocated a budget of $Z million for that purpose."
"***BBBBZZZZTTTT!!!!*** We didn't say 'Congress Says'!"
Yes, some households have several phone numbers per person. However, other households have one phone number for several people. Cell phones, second lines, etc are moderately common, but far from ubiquitous.
According to this MSNBC Article: President Bush on Tuesday signed legislation creating a national "do-not-call" list intended to help consumers block unwanted telemarketing calls.
But according to this new article: The U.S. District Court in Oklahoma City said the Federal Trade Commission overstepped its authority when it set up the popular anti-telemarketing measure, according to a court decision filed late on Tuesday.
OK, now I'm confused....How did the FTC overstep its authority if it supposedly did exactly what the President wanted? Or was the DNC list supposed to implemented by some other government organization?
The court appears to be saying that the DNC list was supposed to implemented by some other government organization. However, I simply don't understand their basis for denying that Congress had the right to delegate this authority to the FTC (under the bill signed by President Bush on March 11), unless they're rejecting the whole notion that Congress may delegate authority to Executive Branch agencies (which would open up a humongous can of worms).
They argue that the number of sales they get, even to people who assume they don't like telemarketing, shows the value of what they offer.
The dirty little secret of telemarketing is that it effectively targets people who lack the mental and emotional resources to deal with a sales pitch that takes the form of a personal conversation.
Telemarketing is not needed to reach people who already want what you're selling -- they'll find you through conventional means. Telemarketing is not effective on people who don't want what you're selling and are capable of firmly saying "no". That leaves the case of people who don't particularly care about what you're selling, but can be buffaloed into buying it anyway because a telemarketer is the closest thing they get to real human contact or because their decision-taking ability just isn't fully there.
The reason the telemarketers fought the DNC list like berserkers is that this target demographic usually does have enough judgment to recognize (after the fact) that listening to these sales pitches was a bad idea, and will jump at the chance not to get any more of them (once the chance is presented in a way that doesn't require jumping through lots of hoops or admitting that they've been bamboozled).
Does the First Amendment protect commercial speech like any other form of speech?
As a matter of fact, no, it doesn't. For instance, I can say "Microsoft Windows is a perfectly crash-free operating system" and suffer no consequences (except public derision). However, if I were trying to sell you a copy of Windows and made that claim, I could be arrested for fraud.
In any case, the issue of "commercial speech" is beside the point. The one and only relevant issue here is private property rights (i.e. you own/rent the bandwidth and storage space; thus, nobody has any right to stuff their crap into it without your consent).
Please dont bother citing Rowan v. Post office because that case concerned the sending of unsolicited obscene PORN through the mail not all junk mail.
Nope. The legal principle set forth in Rowan is in no way limited to porn.
If you want such a draconian law, then dont you dare whine about DECSS codes on tshirts, professors threatened for publishing about encryption or any other first amendment cause you care about because otherwise you are a hypocrite.
Nonsense. Spam apologists attempt to blur the issue with such irrelevancies all the time -- but that doesn't change the issue, which is that other people don't have a right to use your property to convey their message.
What should a model Spam law do.
It should clearly establish that any attempt to circumvent a spam filter is a form of computer cracking, and apply the usual penalties for that offense. After a few spammers get 2-5 in a real don't-drop-the-soap joint for using forged headers, munging spam-trigger words, disguising messages with random junk fillers, etc, then it would become practical for even small ISPs and individual users to filter with four-nines accuracy.
I think technology problems can be solved by technology only, and not by law.
This is obviously incorrect. For example, the problem of lockpick technology being used to commit burglary does not lend itself to a practical technological solution (you would have to put bank-vault level security on every door and window in your house), but it can be kept under control by making unauthorized lockpicking illegal (so that burglars can't afford to spend lots of time fiddling with an outside lock, lest they get caught).
Riddle me this: what's stopping all of these tax-producing companies from moving out of the state of California, so some other state with less harsh spam laws?
This is a valid point for some types of regulation (e.g. the mandatory health coverage bill).
However, it is irrelevant to spammers -- chickenboners selling herb4l v1agra tend not to pay their taxes, and wouldn't generate much revenue even if they did.
First off, I wasn't talking about locks and breaking/entering.
You most certainly were, by using an analogy to "an 'everyone can come in' style unlocked door" [emphasis added]
I was talking about providing a public space and/or service.
One's computer is private property, not "a public space".
His spam filtering, BTW, had nothing to do with it, because no reasonable person can be expected to know that he has spam-filtering or how it works.
Irrelevant. Spammers use various techniques that are readily identifiable as means to circumvent spam filters. To illustrate with the analogy between bandwidth property and physical property, poking at somebody else's door with a recognizable lock-pick is illegal even if it turns out to be the wrong kind of pick for the lock.
If you put a dog in the house who chases out "bad package holders" and it fails to chase out someone that you wanted it to chase out, you don't get to blame the package-bearer.
You do if the package-bearer took steps to disguise himself as a legitimate visitor.
You need a dog that will learn to recognize what kinds of packages and what kind of delivery persons you want.
Precisely -- delivery people should be allowed in, and miscreants who disguise themselves as delivery people in order to get in fraudulently should be put in prison.
Really, my bottom-line solution (laws that threat circumvention of spam filters as a form of computer cracking, with the standard penalties for that offense) lets everybody win. People who want to filter their mail will be able to do so accurately without undue difficulty. People who don't care to stop spam can keep getting it. People who want to send spam can continue to do so (they just can't force their way in past other people's locks).
But when the spammers go out of their way to circumvent the technology, a law making it illegal would go a long way towards stopping it.
Do you mean making spam itself illegal, or making filter circumvention illegal?
The latter should definitely be done (or, more precisely, the computer-cracking laws should be clarified to make it unmistakable that this particular type of computer cracking is covered). The former might not be necessary if the latter is prohibited and the prohibition is enforced.
But in the case of burglers a) you did not invite them in by installing an "everyone can come in" style unlocked door, which is recognized world-wide as a standard invitation to come on in
First, I wonder what gave you the notion that Per Abrahamsen has no spam filter on his e-mail. (Whether or not the spam filter is effective is irrelevant -- having one at all is sufficient to establish that the "door" in this analogy is locked, and breaking and entering is a crime whether it's a $3.99 padlock or the vault lock of Fort Knox.)
Second, it is most certainly illegal to "come on in" through an unlocked door without the consent of the property owner.
Since the professionel spammers have far more victims than even the most active burgler, he should be punished harder. For the naive first-time spammer "who didn't knew better" however, a fine large enough to make it clear that this is not how to MAKE MONEY FAST is enough.
Spammers should be used to fill potholes.
The naive first-times can be given the more lenient sentence of merely being required to shovel hot asphalt into potholes.
For the individual who's fed up with Spam I would stress the importance of spam filtering methods.
That's a workable solution if the law treats circumvention of spam filters as a form of computer cracking (which it is -- it's a deliberate attempt to gain access to a computer that doesn't belong to you against the express prohibition of the owner).
Buying a lock for your front door and using it is a normal precaution. But it wouldn't do any good if crooks could take all the time they wanted to pick your locks without fear of being interrupted by the police.
I don't suppose you ever entertained the notion that perhaps the applications the Army needed to run weren't available on any other operating systems, did you?
Yes, I suppose that it just didn't occur to him that it might not be profitable to custom-build an application for a piddling little niche market such as the United States Army.
Replacing an 89 cent pen with a $1000 electronic system--now there's a good idea.
A computer printout of a vote entered by touchscreen (or whatever) has the advantages of 1)eliminating the possibility of ambiguous votes and 2)being much easier to tally via OCR (since everything can be printed out in a single font optimized for clarity).
Note that the system would need to have an explicit option for "spoiling" the ballot in some or all of the available selections, in effect creating a non-binding (but still potentially embarassing) NOTA option.
In this case, part of the "job" is proving that the voting software doesn't have a back door that enables somebody to fix the vote. That's simply not possible unless disinterested third parties can examine the code.
Personally, I think that every communications provider should have a clearly marked line item labeled "GORE TAX". Let the politician who dreamed it up take public "credit" for it.
Chicago made who knows how many millions in the theaters at it's first run, and second run even, they've already broken even on the movie. An album doesn't get a chance to make it's money back BEFORE it hits the consumer format.
Movies most certainly can be illegally bootlegged the day they hit the theaters (with a smuggled videocamera) or even before (with inside assistance). Ergo, the success of movies relative to recorded music must arise from factors other than lack of illegal bootlegging. (I would submit that the bottom-line factor is that DVDs offer a lot more value and only a moderately higher price than CDs.)
"Speakeasy blocked my spam to their users! I've been censored!"
"The fascist pigs stopped me from spray-painting grafitti on City Hall! I've been censored!"
"The New York Times didn't run my letter exposing George Bush as a space alien! I've been censored!"
These are but a few of the absurd conclusions that follow inescapbably from this definition.
Choosing to run a story about how J.Lo might dump Ben while not running a story about how the administration deliberately falsified records in order to gain public approval for the wholesale slaughter of tens of thousands of Iraqis is, for lack of a better word, censorship.
The whole point is that there are a plethora of better words (filtering, neglect, spin, etc) that do not trivialize the plight of people who actually go to jail if they say things the government doesn't want them to say.
Applying the term "Censored" to a story that got less attention than you think it deserved is like applying the term "Nazi" to the cop who just gave you a speeding ticket. It's inaccurate, stupid, and it trivializes the outrages that really deserve those descriptions.
The difference between an A-Bomb and systematic firebombing is that panicked civilians can outrun fires and huddle together to starve in crowded suburban ruins.
You don't outrun a firestorm, unless you have muscle tissue that doesn't run by oxidation.
spammers use randomly generated crap at the end of theirs
The proper focus for a legal attack on spam is to explicitly recognize that spam filters are a form of computer security, and to apply the existing anti-cracking laws to any attempts to circumvent such filters. Unless the spammer can come up with some plausible alternative explanation for the random junk, it's sufficient evidence to put him away for 2-5 or so under this doctrine.
If the risks of using filter circumventions become high enough to serve as an effective deterrent, then effective filtering with little risk of false positives becomes far more practical.
Admittedly, some spammers might still stay in business within the law, knowing full well that the crap won't get through but figuring that he'll be gone with the money before the sucker^H^H^H^H^H^Hclient figures that out.
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They did. The judge ignored those arguments, and relied exclusively upon the argument that the FTC lacked a proper grant of jurisdiction from Congress.
That is, the judge found the following argument to be more persuasive that the telemarketers' Constitutional claims:
Yes, some households have several phone numbers per person. However, other households have one phone number for several people. Cell phones, second lines, etc are moderately common, but far from ubiquitous.
But according to this new article: The U.S. District Court in Oklahoma City said the Federal Trade Commission overstepped its authority when it set up the popular anti-telemarketing measure, according to a court decision filed late on Tuesday.
OK, now I'm confused....How did the FTC overstep its authority if it supposedly did exactly what the President wanted? Or was the DNC list supposed to implemented by some other government organization?
The court appears to be saying that the DNC list was supposed to implemented by some other government organization. However, I simply don't understand their basis for denying that Congress had the right to delegate this authority to the FTC (under the bill signed by President Bush on March 11), unless they're rejecting the whole notion that Congress may delegate authority to Executive Branch agencies (which would open up a humongous can of worms).
The dirty little secret of telemarketing is that it effectively targets people who lack the mental and emotional resources to deal with a sales pitch that takes the form of a personal conversation.
Telemarketing is not needed to reach people who already want what you're selling -- they'll find you through conventional means. Telemarketing is not effective on people who don't want what you're selling and are capable of firmly saying "no". That leaves the case of people who don't particularly care about what you're selling, but can be buffaloed into buying it anyway because a telemarketer is the closest thing they get to real human contact or because their decision-taking ability just isn't fully there.
The reason the telemarketers fought the DNC list like berserkers is that this target demographic usually does have enough judgment to recognize (after the fact) that listening to these sales pitches was a bad idea, and will jump at the chance not to get any more of them (once the chance is presented in a way that doesn't require jumping through lots of hoops or admitting that they've been bamboozled).
...onto Confusion Road.
As a matter of fact, no, it doesn't. For instance, I can say "Microsoft Windows is a perfectly crash-free operating system" and suffer no consequences (except public derision). However, if I were trying to sell you a copy of Windows and made that claim, I could be arrested for fraud.
In any case, the issue of "commercial speech" is beside the point. The one and only relevant issue here is private property rights (i.e. you own/rent the bandwidth and storage space; thus, nobody has any right to stuff their crap into it without your consent).
Nope. The legal principle set forth in Rowan is in no way limited to porn.
If you want such a draconian law, then dont you dare whine about DECSS codes on tshirts, professors threatened for publishing about encryption or any other first amendment cause you care about because otherwise you are a hypocrite.
Nonsense. Spam apologists attempt to blur the issue with such irrelevancies all the time -- but that doesn't change the issue, which is that other people don't have a right to use your property to convey their message.
What should a model Spam law do.
It should clearly establish that any attempt to circumvent a spam filter is a form of computer cracking, and apply the usual penalties for that offense. After a few spammers get 2-5 in a real don't-drop-the-soap joint for using forged headers, munging spam-trigger words, disguising messages with random junk fillers, etc, then it would become practical for even small ISPs and individual users to filter with four-nines accuracy.
This is obviously incorrect. For example, the problem of lockpick technology being used to commit burglary does not lend itself to a practical technological solution (you would have to put bank-vault level security on every door and window in your house), but it can be kept under control by making unauthorized lockpicking illegal (so that burglars can't afford to spend lots of time fiddling with an outside lock, lest they get caught).
This is a valid point for some types of regulation (e.g. the mandatory health coverage bill).
However, it is irrelevant to spammers -- chickenboners selling herb4l v1agra tend not to pay their taxes, and wouldn't generate much revenue even if they did.
You most certainly were, by using an analogy to "an 'everyone can come in' style unlocked door" [emphasis added]
I was talking about providing a public space and/or service.
One's computer is private property, not "a public space".
His spam filtering, BTW, had nothing to do with it, because no reasonable person can be expected to know that he has spam-filtering or how it works.
Irrelevant. Spammers use various techniques that are readily identifiable as means to circumvent spam filters. To illustrate with the analogy between bandwidth property and physical property, poking at somebody else's door with a recognizable lock-pick is illegal even if it turns out to be the wrong kind of pick for the lock.
If you put a dog in the house who chases out "bad package holders" and it fails to chase out someone that you wanted it to chase out, you don't get to blame the package-bearer.
You do if the package-bearer took steps to disguise himself as a legitimate visitor.
You need a dog that will learn to recognize what kinds of packages and what kind of delivery persons you want.
Precisely -- delivery people should be allowed in, and miscreants who disguise themselves as delivery people in order to get in fraudulently should be put in prison.
Really, my bottom-line solution (laws that threat circumvention of spam filters as a form of computer cracking, with the standard penalties for that offense) lets everybody win. People who want to filter their mail will be able to do so accurately without undue difficulty. People who don't care to stop spam can keep getting it. People who want to send spam can continue to do so (they just can't force their way in past other people's locks).
Do you mean making spam itself illegal, or making filter circumvention illegal?
The latter should definitely be done (or, more precisely, the computer-cracking laws should be clarified to make it unmistakable that this particular type of computer cracking is covered). The former might not be necessary if the latter is prohibited and the prohibition is enforced.
First, I wonder what gave you the notion that Per Abrahamsen has no spam filter on his e-mail. (Whether or not the spam filter is effective is irrelevant -- having one at all is sufficient to establish that the "door" in this analogy is locked, and breaking and entering is a crime whether it's a $3.99 padlock or the vault lock of Fort Knox.)
Second, it is most certainly illegal to "come on in" through an unlocked door without the consent of the property owner.
Spammers should be used to fill potholes.
The naive first-times can be given the more lenient sentence of merely being required to shovel hot asphalt into potholes.
That's a workable solution if the law treats circumvention of spam filters as a form of computer cracking (which it is -- it's a deliberate attempt to gain access to a computer that doesn't belong to you against the express prohibition of the owner).
Buying a lock for your front door and using it is a normal precaution. But it wouldn't do any good if crooks could take all the time they wanted to pick your locks without fear of being interrupted by the police.
A few hundred bricks and some mortar don't really cost that much. Heck, I'll even be generous and throw in a real cask of Amontillado.
Yes, I suppose that it just didn't occur to him that it might not be profitable to custom-build an application for a piddling little niche market such as the United States Army.
A computer printout of a vote entered by touchscreen (or whatever) has the advantages of 1)eliminating the possibility of ambiguous votes and 2)being much easier to tally via OCR (since everything can be printed out in a single font optimized for clarity).
Note that the system would need to have an explicit option for "spoiling" the ballot in some or all of the available selections, in effect creating a non-binding (but still potentially embarassing) NOTA option.
In this case, part of the "job" is proving that the voting software doesn't have a back door that enables somebody to fix the vote. That's simply not possible unless disinterested third parties can examine the code.
Personally, I think that every communications provider should have a clearly marked line item labeled "GORE TAX". Let the politician who dreamed it up take public "credit" for it.
Movies most certainly can be illegally bootlegged the day they hit the theaters (with a smuggled videocamera) or even before (with inside assistance). Ergo, the success of movies relative to recorded music must arise from factors other than lack of illegal bootlegging. (I would submit that the bottom-line factor is that DVDs offer a lot more value and only a moderately higher price than CDs.)
"Speakeasy blocked my spam to their users! I've been censored!"
"The fascist pigs stopped me from spray-painting grafitti on City Hall! I've been censored!"
"The New York Times didn't run my letter exposing George Bush as a space alien! I've been censored!"
These are but a few of the absurd conclusions that follow inescapbably from this definition.
The whole point is that there are a plethora of better words (filtering, neglect, spin, etc) that do not trivialize the plight of people who actually go to jail if they say things the government doesn't want them to say.
Applying the term "Censored" to a story that got less attention than you think it deserved is like applying the term "Nazi" to the cop who just gave you a speeding ticket. It's inaccurate, stupid, and it trivializes the outrages that really deserve those descriptions.
You don't outrun a firestorm, unless you have muscle tissue that doesn't run by oxidation.
The proper focus for a legal attack on spam is to explicitly recognize that spam filters are a form of computer security, and to apply the existing anti-cracking laws to any attempts to circumvent such filters. Unless the spammer can come up with some plausible alternative explanation for the random junk, it's sufficient evidence to put him away for 2-5 or so under this doctrine.
If the risks of using filter circumventions become high enough to serve as an effective deterrent, then effective filtering with little risk of false positives becomes far more practical.
Admittedly, some spammers might still stay in business within the law, knowing full well that the crap won't get through but figuring that he'll be gone with the money before the sucker^H^H^H^H^H^Hclient figures that out.