In editing the submission, scuttlemonkey took out the link to TFA. Howard wrote: "Va. Supreme Court to revisit divisive spam case; It upheld convictions but will consider constitutional issue": The Richmond Times-Dispatch today contains an article that begins, "The Supreme Court of Virginia yesterday agreed to a limited rehearing of its closely divided decision upholding the first felony spam convictions in the country." My earlier coverage of the Supreme Court of Virginia's original 4-3 ruling in this case, issued February 29, 2008, appears here and here. Yesterday's order granting rehearing on specified issues can be accessed at this link. Posted at 08:04 PM by Howard Bashman
Does the first amendment apply in this case? The man is sending mail from overseas servers that have no intent other than selling something. I know that the first amendment doesn't cover dangerous communication, or communication about illegal acts, but does it cover bad, mass advertising that costs the end user money and that they can't really opt out of?
The first amendment doesn't cover theft of resources, scamming, lies, shouting "fire" in a crowded theatre, etc. The "theft of resources" was already dealt with by people who successfully sued for junk faxes. The first amendment doesn't apply. The scamming and lies are covered by various legislation that requires truth in advertising. The "shouting fire" was decided LONG ago...
The first amendment does cover ads. see discussion below of central hudson, see also 44 liquormart. But this case isn't about ads. The first amendment covers lots of dangerous speech, lots of communication about illegal activities, lots of bad ads. This is a case about whether the statute he was charged under is constitutional. If it's not, it's void and isn't law, and he can't be kept in jail under it, no matter how much we don't like the guy. The shouting fire case was indeed decided long ago, 1919, schenck v united states. Schenck was put in jail for passing out pamphlets claiming that the draft was unconstitutional under the 13th Amendment. Personally, I think he was right. The case was overruled in 1968 or 69 in Brandenburg. The reason Schenck is still the first case taught in First Amendment classes is that it was wrong. Sometimes the theater really is on fire. It's hard to write a statute that does what you want but stays within the first amendment. It's easy to write a statute that bans spam, but also accidentally bans slashdot. - arbitrary aardvark
agree strongly. at the xkcd fest, 1000 nerds showed up at a park, made ironic signs for the park, made tshirts, acted out sundry xkcd episodes, red spiders, a trebuchet, padded sword fighting, some "wah" game, unicycle, ferret glider, wireless network, jungle gym climbing,tape measure battles, oh lots of things. - arbitrary aardvark, too lazy to sign in or look up the flickr site for that event.
The court decided that the ISP CAN, or perhaps I mean must, give out the information without a warrant. All that is needed is a subpoena. Orin Kerr discusses and links to the case at volokh.com, which isn't coming up for me right now. Also, most of the commenters seem to have missed that this is a case about the new jersey constitution, not about the 4th amendment.
Once upon a time, back at Alma Mater U, the campus newspaper ran an ad "Red giant seeks white dwarf for binary relationship." and gave astronomy professor Harry Shipman's phone number. Ever since then, ID has been required when placing personal ads.
(just smile and nod, smile and nod. they'll never know you have no idea what this means) Agree. I'm the guy who submitted the article, and I have no idea what it's about. It just felt slashdotty.
Anyone know what the evidence was regarding the ID theft?
I don't actually. But TFA mentioned how the Washington ID theft statute had never been used in that way before. In my original draft of the summary I described the ID charges as "iffy". The deal is for potentially a lot of jail time. Fines and restitution don't matter much because he's sheltered all his assets after having gotten sued by Microsoft. 90% of criminal charges are resolved with plea bargains, and that usually involves dropping most charges and pleaing to one or a few.
http://itotd.com/articles/532/the-longitude-problem/ - link has background on the invention of a better watch to solve the longitude problem. I recently finally read Stephenson's Baroque Cycle, where there's a plot line involving the creation of the longitude prize. It took about 50 years longer than expected to be claimed.
This just in:
Actually Obama won Texas.
So when the two steps are all done, the projection is for Obama to emerge with 98 delegates to Clinton's 95.http://www.npr.org/watchingwashington/index.html
Clinton 1,453,139 51% 64 Winner Obama 1,354,672 48% 62 Texas is basically a tie. HRC is up by 2 in Texas, up by 4 in Rhode Island, down 4 in Vermont, up 12 in Ohio. Why is it a win? Breaks the streak, upsets Obama's momentum. From here, she needs to either a) win all the remaining primary delegates b) corruptly change the rules to steal the michigan and florida delegates and or c) buy off (or persuade) enough superdelegates. A) is not an option, but she may roughly tie the rest and then go with b) and c). It'll go to a brokered convention, where her skills in knife-fighting and duplicity give her an advantage. Too soon to call the outcome. As much as I dislike McCain, right now he's the way to bet. Veep choices could be especially important this year.
Here http://slashdot.org/~arbitraryaardvark/journal/181743 is my earlier coverage of the case.
Associated Press reports on a hearing held today in the case of a man convicted of felony spamming. There's no doubt the man, Jeremy Jaynes, was a major spammer. The issue is whether the statute he was charged under is constitutional - whether Virginia has jurisdiction to regulate speech on the internet, and whether the state can make it a crime to speak anonymously online. There are cases on both sides of both issues, and we don't know what the court will decide.
You don't have to be a lawyer to know that a jury would never be able decide on the constitutionality of a statute Wrong. Parent post is underrated at -1. Parent is correct that juries can and should and do rule on constitutionality, or other aspects of legality, in making decisions to convict or acquit. Such decisions don't act as precedents, but they are an important part of due process. That's just not what's happening in this case, which is about a ruling by judges, judges on the Supreme Court of Virginia, which is what grandparent post was getting at. The case was a jury trial, as noted in footnote 4, so actually the headline is correct that the jury did find the spammer guilty. We are not told if the jury was instructed on jury nullification or if it was explained to the jury how the statute is probably unconstitutional. Sometimes judges prevent lawyers from telling these things to the jury, in violation of the rights of the accused. WE don't know whethger the jury was aware it was ruling on the constitutionality of the statute. The court was and did, and probably got it wrong.
I read this case this morning. I thought about posting it to slashdot, because it's new news about spam, but I ended up deciding not to. The 49-page decision is rather technical, and I didn't think slashdot editors and readers would be able to get a good handle on it. The court's main argument was that defendant didn't have standing to raise an overbreadth First Amendment challenge, because he was engaged in misleading commercial speech. The court based this "rule" on one lone case from 1972 about topless dancing. That case was based on another Virgina case that was overturned by the Supreme Court. The rule depends on the idea that states can have different rules about First Amendment standing than federal courts can. This is true in that state courts can have less restrictive rules, because states aren't limited by article 3 of the us constitution, but it's far from clear that states can have more restrictive rules. The court's treatment of commercial speech as less protected is also problematic, and Justice Thomas at least believes that commercial speech is substantially protected by the First Amendment. The dissent (3 judges to 4 in the majority) ridiculed the standing decision, pointing out that anonymity on the internet is protected under the Supreme Court's precedents such as Watchtower v Stratton and McIntyre v Ohio Elections. The majority also rejected Defendant's reverse commerce clause argument, and may or may not have gotten this part of the decision wrong. In this case, D. was spamming aol users, from a stolen list of aol users, so he had reason to know his spamming would impact Virginia. But the statute is problematic. It says that if a person in Hawaii emails an aol user in Alaska, they are subject to Virginia law, because aol happens to have its servers in Virginia. This is in tension with the general idea that states don't get to regulate what's going on in other states. Justice Thomas rejects the whole idea of reverse commerce clause arguments, because he points out that there is no reverse commerce clause in the constitution. But a current majority of the court does accept the idea, and it isn't altogether clear how they would rule if that issue gets a petition for certiorari. Defendant made some third losing argument I no longer remember. The opinion is here in pdf: http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf
If some of the above seems unitelligible and jargonated, see how I feel about slashdot posts that are just strings of initials and numbers that you guys know what they mean but i don't. Above post is informative and insightful, because I'm a karma whore.
"Copyright infringer", not "thief".
The forged sales agreement, and the bogus defamation suit, takes it out of being just copyright infringement and more something else. Theft is probably the right label for that something else. $20K ain't chicken feed for our hero, but to the bank it is cheaper to lose the occasional lawsuit than to do business honorably. Our hero should probably follow up with various banking regulatory agencies (private or public) to make this hurt more.
obtopic: A few years ago I was falsely accused of an attempted crime. Ever try to prove that you didn't try, but fail, to do something? I'm a geek. My lawyer felt that there was a certain chance a jury would convict, just out of a sense that I seem weird. So we wanted to go with a trial by judge, but the judge had a reputation as a hanging judge, so we worked out a deal for a special magistrate who was a guy who knew geek. Luckily, the witness admitted the thing never happened, and the charges were dismissed without trial, but I learned a lot about the way the jails have a lot of innocent people in them. According to my lawyer, who would know, "beyond a reasonable doubt" means in practice, the jury is 85% sure; that they get it wrong about 1 time in 7. So being falsely accused of a crime is a lot like russian roulette.
Occam's razor suggests that the most likely explanation is that he killed his wife. But Occam's razor isn't proof, it's just how to bet. Here there are significant other possibilities. She could be alive, have been killed by the Russian mob, have been killed by the boyfriend, have been killed by some unknown person, could have been killed by the husband but in such a way that it can never be proven, or could have been killed by the husband which we know because of a missing car seat. As to which of these it was, we can only speculate, and that's not enough to convict. By bringing a prosecution now, the state has blown its chance of convicting him later if real evidence is found. Disclaimer: I'm not in the courtroom, and the media doesn't always tell the real story, so there could be other facts I don't have access to.
You must be new here. Your post was informed, on point and insightful. Anyway, I thought I'd mention that Nader's in. He announced on Press the Meet with Tim Russert this morning.
Slashdot Mirror
In editing the submission, scuttlemonkey took out the link to TFA.
Howard wrote:
"Va. Supreme Court to revisit divisive spam case; It upheld convictions but will consider constitutional issue": The Richmond Times-Dispatch today contains an article that begins, "The Supreme Court of Virginia yesterday agreed to a limited rehearing of its closely divided decision upholding the first felony spam convictions in the country."
My earlier coverage of the Supreme Court of Virginia's original 4-3 ruling in this case, issued February 29, 2008, appears here and here.
Yesterday's order granting rehearing on specified issues can be accessed at this link.
Posted at 08:04 PM by Howard Bashman
Does the first amendment apply in this case? The man is sending mail from overseas servers that have no intent other than selling something. I know that the first amendment doesn't cover dangerous communication, or communication about illegal acts, but does it cover bad, mass advertising that costs the end user money and that they can't really opt out of?
...
The first amendment doesn't cover theft of resources, scamming, lies, shouting "fire" in a crowded theatre, etc.
The "theft of resources" was already dealt with by people who successfully sued for junk faxes. The first amendment doesn't apply.
The scamming and lies are covered by various legislation that requires truth in advertising.
The "shouting fire" was decided LONG ago
The first amendment does cover ads. see discussion below of central hudson, see also 44 liquormart.
But this case isn't about ads. The first amendment covers lots of dangerous speech, lots of communication about illegal activities, lots of bad ads.
This is a case about whether the statute he was charged under is constitutional. If it's not, it's void and isn't law, and he can't be kept in jail under it, no matter how much we don't like the guy.
The shouting fire case was indeed decided long ago, 1919, schenck v united states. Schenck was put in jail for passing out pamphlets claiming that the draft was unconstitutional under the 13th Amendment. Personally, I think he was right.
The case was overruled in 1968 or 69 in Brandenburg. The reason Schenck is still the first case taught in First Amendment classes is that it was wrong.
Sometimes the theater really is on fire.
It's hard to write a statute that does what you want but stays within the first amendment.
It's easy to write a statute that bans spam, but also accidentally bans slashdot.
- arbitrary aardvark
agree strongly.
at the xkcd fest, 1000 nerds showed up at a park,
made ironic signs for the park, made tshirts, acted out sundry xkcd episodes, red spiders, a trebuchet, padded sword fighting, some "wah" game, unicycle, ferret glider, wireless network, jungle gym climbing,tape measure battles, oh lots of things.
- arbitrary aardvark, too lazy to sign in or look up the flickr site for that event.
http://volokh.com/archives/archive_2008_04_20-2008_04_26.shtml#1208802378
The court decided that the ISP CAN, or perhaps I mean must, give out the information without a warrant. All that is needed is a subpoena.
Orin Kerr discusses and links to the case at volokh.com, which isn't coming up for me right now.
Also, most of the commenters seem to have missed that this is a case about the new jersey constitution, not about the 4th amendment.
Above post is informative and insightful.
I don't think we ever went to the moon in the first place.
I know I didn't go to the moon. Did you?
I for one welcome our new robot overflying predators.
What could possibly go wrong?
http://www.wickedlasers.com/
Once upon a time, back at Alma Mater U, the campus newspaper ran an ad
"Red giant seeks white dwarf for binary relationship." and gave astronomy professor Harry Shipman's phone number.
Ever since then, ID has been required when placing personal ads.
Unfortunately for him, a cheap, safe, mass-market flying car was announced an hour later.
This one?
http://www.pal-v.com/
Submitter here. Right after hitting submit, I realized I'd forgotten to link to marginal revolutions, an economics blog that pointed me to the story.
http://www.marginalrevolution.com/marginalrevolution/2008/03/assorted-link-4.html
http://www.marginalrevolution.com/
(just smile and nod, smile and nod. they'll never know you have no idea what this means)
Agree. I'm the guy who submitted the article, and I have no idea what it's about.
It just felt slashdotty.
Actually, he pled to failure to file, not quite the same thing as tax evasion.
I had written tax avoision, and zonk changed it.
Anyone know what the evidence was regarding the ID theft?
I don't actually. But TFA mentioned how the Washington ID theft statute had never been used in that way before. In my original draft of the summary I described the ID charges as "iffy".
The deal is for potentially a lot of jail time. Fines and restitution don't matter much because he's sheltered all his assets after having gotten sued by Microsoft. 90% of criminal charges are resolved with plea bargains, and that usually involves dropping most charges and pleaing to one or a few.
http://itotd.com/articles/532/the-longitude-problem/
- link has background on the invention of a better watch to solve the longitude problem.
I recently finally read Stephenson's Baroque Cycle, where there's a plot line involving
the creation of the longitude prize. It took about 50 years longer than expected to be claimed.
This just in: Actually Obama won Texas. So when the two steps are all done, the projection is for Obama to emerge with 98 delegates to Clinton's 95. http://www.npr.org/watchingwashington/index.html
"Dude, you got me up for a snake?"
- Clever Nick Name reviews python.
Clinton 1,453,139 51% 64 Winner
Obama 1,354,672 48% 62
Texas is basically a tie. HRC is up by 2 in Texas, up by 4 in Rhode Island, down 4 in Vermont, up 12 in Ohio.
Why is it a win? Breaks the streak, upsets Obama's momentum. From here, she needs to either
a) win all the remaining primary delegates
b) corruptly change the rules to steal the michigan and florida delegates
and or
c) buy off (or persuade) enough superdelegates.
A) is not an option, but she may roughly tie the rest and then go with b) and c).
It'll go to a brokered convention, where her skills in knife-fighting and duplicity give her an advantage. Too soon to call the outcome.
As much as I dislike McCain, right now he's the way to bet.
Veep choices could be especially important this year.
Here http://slashdot.org/~arbitraryaardvark/journal/181743 is my earlier coverage of the case. Associated Press reports on a hearing held today in the case of a man convicted of felony spamming. There's no doubt the man, Jeremy Jaynes, was a major spammer. The issue is whether the statute he was charged under is constitutional - whether Virginia has jurisdiction to regulate speech on the internet, and whether the state can make it a crime to speak anonymously online. There are cases on both sides of both issues, and we don't know what the court will decide.
You don't have to be a lawyer to know that a jury would never be able decide on the constitutionality of a statute
Wrong.
Parent post is underrated at -1. Parent is correct that juries can and should and do rule on constitutionality, or other aspects of legality, in making decisions to convict or acquit.
Such decisions don't act as precedents, but they are an important part of due process.
That's just not what's happening in this case, which is about a ruling by judges, judges on the Supreme Court of Virginia, which is what grandparent post was getting at.
The case was a jury trial, as noted in footnote 4, so actually the headline is correct that the jury did find the spammer guilty. We are not told if the jury was instructed on jury nullification or if it was explained to the jury how the statute is probably unconstitutional. Sometimes judges prevent lawyers from telling these things to the jury, in violation of the rights of the accused.
WE don't know whethger the jury was aware it was ruling on the constitutionality of the statute.
The court was and did, and probably got it wrong.
I read this case this morning.
I thought about posting it to slashdot, because it's new news about spam, but I ended up deciding not to.
The 49-page decision is rather technical, and I didn't think slashdot editors and readers would be able to get a good handle on it.
The court's main argument was that defendant didn't have standing to raise an overbreadth First Amendment challenge, because he was engaged in misleading commercial speech.
The court based this "rule" on one lone case from 1972 about topless dancing.
That case was based on another Virgina case that was overturned by the Supreme Court.
The rule depends on the idea that states can have different rules about First Amendment standing than federal courts can. This is true in that state courts can have less restrictive rules, because states aren't limited by article 3 of the us constitution, but it's far from clear that states can have more restrictive rules.
The court's treatment of commercial speech as less protected is also problematic, and Justice Thomas at least believes that commercial speech is substantially protected by the First Amendment.
The dissent (3 judges to 4 in the majority) ridiculed the standing decision,
pointing out that anonymity on the internet is protected under the Supreme Court's precedents such as Watchtower v Stratton and McIntyre v Ohio Elections.
The majority also rejected Defendant's reverse commerce clause argument, and may or may not have gotten this part of the decision wrong.
In this case, D. was spamming aol users, from a stolen list of aol users, so he had reason to know his spamming would impact Virginia. But the statute is problematic. It says that if a person in Hawaii emails an aol user in Alaska, they are subject to Virginia law, because aol happens to have its servers in Virginia. This is in tension with the general idea that states don't get to regulate what's going on in other states.
Justice Thomas rejects the whole idea of reverse commerce clause arguments, because he points out that there is no reverse commerce clause in the constitution. But a current majority of the court does accept the idea, and it isn't altogether clear how they would rule if that issue gets a petition for certiorari.
Defendant made some third losing argument I no longer remember.
The opinion is here in pdf: http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf
If some of the above seems unitelligible and jargonated, see how I feel about slashdot posts that are just strings of initials and numbers that you guys know what they mean but i don't.
Above post is informative and insightful, because I'm a karma whore.
http://xkcd.com/233/
"Copyright infringer", not "thief".
The forged sales agreement, and the bogus defamation suit, takes it out of being just copyright infringement and more something else. Theft is probably the right label for that something else.
$20K ain't chicken feed for our hero, but to the bank it is cheaper to lose the occasional lawsuit than to do business honorably.
Our hero should probably follow up with various banking regulatory agencies (private or public) to make this hurt more.
Is that freax in beer, or freeax in speech?
obtopic:
A few years ago I was falsely accused of an attempted crime.
Ever try to prove that you didn't try, but fail, to do something?
I'm a geek. My lawyer felt that there was a certain chance a jury
would convict, just out of a sense that I seem weird.
So we wanted to go with a trial by judge, but the judge had a reputation as a hanging judge, so we worked out a deal for a special magistrate who was a guy who knew geek.
Luckily, the witness admitted the thing never happened, and the charges were dismissed without trial, but I learned a lot about the way the jails have a lot of innocent people in them.
According to my lawyer, who would know, "beyond a reasonable doubt" means in practice, the jury is 85% sure; that they get it wrong about 1 time in 7. So being falsely accused of a crime is a lot like russian roulette.
Occam's razor suggests that the most likely explanation is that he killed his wife.
But Occam's razor isn't proof, it's just how to bet.
Here there are significant other possibilities.
She could be alive, have been killed by the Russian mob, have been killed by the boyfriend, have been killed by some unknown person, could have been killed by the husband but in such a way that it can never be proven, or could have been killed by the husband which we know because of a missing car seat. As to which of these it was, we can only speculate, and that's not enough to convict. By bringing a prosecution now, the state has blown its chance of convicting him later if real evidence is found.
Disclaimer: I'm not in the courtroom, and the media doesn't always tell the real story, so there could be other facts I don't have access to.
You must be new here. Your post was informed, on point and insightful.
Anyway, I thought I'd mention that Nader's in.
He announced on Press the Meet with Tim Russert this morning.
http://xkcd.com/73/
http://xkcd.com/345/