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Fax-Spam Prohibition Ruled Unconstitutional 90

Posted by timothy from the right-to-drown-kittens-in-milk dept.
An anonymous reader submitted a link to this Orange County Register story which reports that "A federal court has ruled in favor of Aliso Viejo (California)-based Fax.com in a dispute over the federal statute that bars sending mass, unsolicited faxes, the company said. Two years ago, Missouri sued Fax.com and another broadcast-fax advertising service that has since gone out of business for violations of the 1991 Telephone Consumer Protection Act." Missouri's Attorney General plans to appeal.
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Fax-Spam Prohibition Ruled Unconstitutional More

Fax-Spam Prohibition Ruled Unconstitutional

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  • What? (Score:2, Interesting)

    by linzeal ( 197905 )
    So they can waste your physical toner and tie up your fax machine for fun and profit? Anyone have fax.com's real physical fax #? We could email them a bunch of black pages with small white lettering advertising sexual relations at a hot hot hot senior community.

  • So the Telephone Consumer Protection Act is unconstitutional, but the Digital Millenium Copyright Act isn't? I guess we have to rename the DMCA to the Digital Millenium Consumer Act. Then maybe it'll be deemed unconstitutional...

    Without seeing the actual ruling of course it's hard to say how serious I am. I'm assuming the TCPA was thrown out due to free speech issues...

  • Spam is theft, theft is legal,... (Score:5, Insightful)

    by coyote-san ( 38515 ) on Sunday March 31, 2002 @12:02PM (#3260546)
    Let's get something straight before I go any further. Spam (email and fax) is theft. It's theft of my resources - my bandwidth, my disk space, and my paper and toner supplies.

    Unsolicited physical mail does me relatively little harm. It does take a bit of time to sort through it, but the USPS won't toss out my VISA bill because the annoying weekly flyer has taken up the last of my mailbox space.

    In contrast, I've lost email because spam filled a partition. (Some broken mailer hit me with 20+ copies of a multimegabyte file in less than an hour.) My fax machine, being the cheapest I could find since I was mostly interested in outgoing faxes, uses a plastic strip that can only handle a relative handful of pages. Every junk fax that I receive significantly increases the risk that an important fax will be cut off.

    If the courts rule that it's legal to steal from me, the results are obvious and inevitable. No more fax, no more junk mail, no answering machine (same legal logic applies), no telephone. You want to talk to me, you'll do it just like the Founding Fathers expected - you'll send a letter or you'll visit me in person because the cost of me offering any alternative is too high.
    • We are all discussing symptoms of a far greater problem. Indeed, this absurdity (sending advertisments at the cost of the recipient, such as Fax and Email SPAM is protected speech), logically follows from an even greater absurdity:

      Corporations are defined as 'people' under the law, thanks to a bizarr and unprecedented court ruling some 80 year ago IIRC. That's right, McDonalds is considered a person, just like you and I, with the same constitutional protections that you and I enjoy.

      This is not what the founding fathers intended ... indeed early government was extremely reluctant to grant charters to companies in the early years of the republic, and executed 'corporate death sentences' (although the terminology isn't really correct for that era) fairly frequently whenever they considered a company to not be acting in the interest of the people. In other words they had no compunction about terminating a company's existence if it was determined to be detrimental to the people's interests. (Lassaiz faire economics and later corruption led to monopolies less than a century later, but even then, at its worst, corporations never enjoyed the same constitutional rights of you and I.)

      If we consider corporations as people, then we can no more ban corporate speech than we can personal speech, which means advertisers can do pretty much anything they like short of yelling 'fire' in a crowded theatre.

      The solution is clear. We need to end this stupid and profane notion that corporations are people. They aren't. They are organizations, nothing more, and are entitled to no constitutional protections whatsoever. They exist solely at our sufferance, and if they harm us we should be able to do away with them in relatively short order. Unlike real, physical people corporations do not have a basic right to exist, and it is past time the supreme court overturned that lower court ruling that has led to this mockery of our constitution and our law once and for all.

      Determine that corporations and companies are not 'people', but merely organizations, and you can ban corporate speech such as SPAM without any problem whatsoever, and without trampling on the freedom of individual speech in any way.

  • Round II (Score:2, Insightful)

    by NFW ( 560362 )
    There will be an appeal. When the name of the judge who will be hearing the appeal becomes public, we must find his fax number. We must sign the judge up for every source of commercial fax that we can find. Bury that machine in its own spew. Give the judge a preview of what is to come.

    Or, just forward every bit of junk email you get to his/her fax machine via jfax.com or some such. Same difference.

    But seriously, this is doubly depressing because I was really hoping that a clueful senator would expand the TCPA to cover junk email some day soon. If the appeal fails I shall weep openly. Advertisers are entitled to burn up my resources when they pay me for the privilege and not a moment sooner.

    • I seriously doubt that an appeals court will uphold this ruling.

      This is not not being done based on the content of the message, but being done based on the method.

      Cities are allowed to restrict bill boards. Cities are allow to prevent one from painting advertising on street signs. The US Postal service is allowed to prevent me from putting advertising in mailboxes, without paying postage.

      • Yeah, but I doubted that it would even get this far. I am also fairly optimistic about the appeal, but the fact that it got as far as it did is still worrying. Along with there rest of the slashdotters, I'd like to see the text of the decision. It sounds so wrong, I wonder if there's more to it.
        • There were a few federal courts that ruled lawsuits must be brought in state court, because the statute provides for action in state court. I read several decisions in the appeals courts that held decision to be just plain wrong.

  • Junk fuckin-mailers and their supporters are the slime of the community. They're even lower down than the virus-spreaders. Virus', though dangerous, are not nearly as common and costly as junk mail, which is estimated to account for 30% of all internet trafic. That means that these fucks slow down the internet by 30%.

    They're stealing 30% of YOUR money.

    Stealing 30% of ISP's bandwidth.

    Stealing MORE than 50% of YOUR bandwidth.

    Causing YOUR ISP prices to rise.

    These fucks need to be dealt with. Its amazing to me that the fuckholes in Congress somehow think that free speech doesn't cover p2p/code (i.e., DeCSS or Advanced e-Book Reader), but DOES cover e-mail or fax spamming. When in reality, it should be EXACTLY the reverse.

    The way to deal with spam is through extreme means. My ULTIMATE strategy is NOT to accept any e-mail (delete it automatically from the server) from anyone not in your address book. But you can only implement this when you have a thorough address book.

    If you can't do that, you have your e-mail prog delete from the server and not download any of the following:

    (1) Messages with inflamatory comments in the subject, anything relating to sex, anything relating to good deals, etc.

    (2) Block the addresses of all spammers. Whenever possible, also block out the DOMAIN NAME. Sorry, but an iron fist strategy has to be taken whenver possible. If you can afford to block a domain name out (i.e., anything other than @msn, @yahoo, @hotmail, @home, @rr, @linux, etc), you do. But don't just block the domain name out. You also should send a message to the ISP telling them that you're blocking out their ISP and why. They just might fix it.
  • I suggest we give fucks who support spam or against it (like this judge, and anthony dipierro, a /. poster [his comments are below]) a taste of their own medicine.

    SPAM the FUCK out of them.

    Send them hundreds of 1MB porno files; cheap scam advertisements; get rich quick schemes; penis enlargement plans; etc.

    Send them this crap in e-mail and in fax. Send them so much spam in fax and e-mail. Organize a DoS SPAM attack against them.

    Here's Dipierro's e-mail and the e-mails of those fucks at FAX.com to SPAM:

    b8us93kks@inbox.org
    sales@Fax.com
    techsupport@ Fax.com
    faxcaster@Fax.com
    consulting@Fax.com
    bi lling@Fax.com
    graphics@Fax.com
    info@Fax.com
    bus inessopp@Fax.com

    As for that fucking judge, he's apparantly too much of a coward to let his e-mail be known. I'll be looking for it. When I find it, I'll post it on /.
    • Yeah...harass a federal judge. You, my friend, are an idiot.
      • If you're not American, he's pretty much powerless to do anything to you. If you are American, use his own judgement in your defense.
      • "Yeah...harass a federal judge. You, my friend, are an idiot"

        Actually, no. According to the asshole's own decision, there's nothing wrong with SPAM. According to this fuckwit, SPAM's not wrong, its not a problem, not a crime. According to him, its unconstitutional to create laws banning SPAM.

        In other words, I could send him a thousand 1MB e-mails, he wouldn't be able to do shit. His own decision says its fine. According to his decision, its not a crime, so I couldn't be fined/prosecuting. And if the fuck decided to file a lawsuit against me, he'd never win because his own decision would be evidence against him.

        The idiot here is clearly the "judge". And you for supporting that fuck.

  • The lines really get blurred... (Score:3, Interesting)

    by redhatbox ( 569534 ) <redhatbox@myrLAP ... m minus math_god> on Sunday March 31, 2002 @06:09PM (#3261951)

    I used to have several digital fax "inboxes", which I used for both business and personal purposes. Some of these were paid accounts, others (most notably OneBox.com [onebox.com]) were free.

    In fact, I used to work as a programmer for a company here in Atlanta called Ptek, which in turn has a business unit called Voicecom. Voicecom offered (probably still do) another "all in one inbox" business solution, whereby faxes could be delivered directly into your email inbox for your review. This blurs the lines between what used to be separate communications services, and I expect this trend to continue as people continue to want all their communications tech from a single point of access.

    Therefore, I offer the following point: what separates (in this environment, at least) email SPAM/UCE from unsolicited faxes? We've got more anti-spam legislation going into the mix every month it seems; could some of this be leveraged to fight the battle against junk faxes?

    For reference, I now receive an average of four to five junk faxes a week on my primary OneBox account. It's annoying :(.

  • I did a Lexus-Nexus search. Its Judge Stephen N. Limbaugh. It is telling of this slime and our legal system in general that information on who made this decision, and the exact nature of the decision, is ONLY available for lawyers or ppl who have access to Lexus-Nexus (via a University), and is completely NOT available by Google (If you Google for "Stephen Limbaugh fax.com" you get a big fat 0 results). Here's his website:

    http://www.osca.state.mo.us/SUP/index.nsf/fd9c11 7b 7d18a11f862567c30077d74f/93b339e2082695a8862565ed0 04a20ed?OpenDocument

    So that all of you can, if you wish, fax-spam this fuck, here's the fax numbers of the Judge and others in his court:

    Stephen N. Limbaugh, Jr., Chief Justice (Chair): (573) 751-7362

    Reverend Earl Abel: (816) 921-6078

    Mr. Gerard T. Carmody: (314) 259-2020

    Mr. Steve Garner: (417) 887-4385

    Dr. Peggy Tuter Pearl: (417) 836-7649

    Mr. Fred Wilkins: (816) 472-6009

    Ms. Mildred Cohn: (314) 367-8195

    To promote a just society where we all know how evil our judicial system is, I'll post the Lexus-Nexus TEXT in my next post.

  • Copyright 2002 NLP IP Company - American Lawyer Media
    All Rights Reserved.
    Pennsylvania Law Weekly

    March 25, 2002

    SECTION: NEWS; Vol. 25; No. 12; Pg. 5

    LENGTH: 1801 words

    HEADLINE: Phila. Lawyers Persuade District Court to Overturn 'Junk Fax' Ban
    Decision may affect cases brought into state courts as well

    BYLINE: By Shannon P. Duffy
    of the Law Weekly

    BODY:
    In a victory for a team of Philadelphia lawyers, a federal judge in St. Louis has struck down as unconstitutional a federal law that bans unsolicited advertisements sent by fax, but says nothing about unwanted faxes that don't meet the law's definition of "advertisement."

    "There is no rationality behind the government's distinction between unsolicited advertisements and other unsolicited faxes. The recipient still must bear the cost, and the fax can still interfere with the recipient's use of his or her facsimile machine for business purposes," U.S. District Judge Stephen N. Limbaugh wrote in State of Missouri v. American Blast Fax Inc., PICS Case No. 02-0352 (E.D. Miss. March 13, 2002) Limbaugh, J. (25 pages).

    The ruling is a victory for a team of lawyers from Cozen O'Connor - Arthur W. Lefco, Michael P. Broadhurst and Julie G. DiSalvio - who represented Fax.com Inc. and challenged the constitutionality of a provision of the Telephone Consumer Protection Act. Limbaugh's ruling may have a ripple effect in Pennsylvania.

    Last year, Allegheny County Common Pleas Court Judge R. Stanton Wettick Jr. decided that private causes of action for violations of the TCPA may be brought in state courts.

    Wettick's decision. Aronson v. Fax.com, PICS Case No. 01-0441 (C.P. Allegheny Feb. 28, 2001) Wettick, J. (17 pages), allowed a plaintiff who was at the receiving end of several unsolicited "junk faxes" to sue under the federal statute in state court.

    The TCPA, Wettick said, gives federal courts exclusive jurisdiction over actions brought by state attorneys general. Jurisdiction over suits brought by private parties is given to the state courts, the Pittsburgh judge said.

    Limbaugh's ruling, if upheld by appeals courts, may invalid claims brought under the TCPA in state courts, including Pennsylvania's.

    The Missouri case began when Fax.com and American Blast Fax were sued by the Missouri Attorney General's Office for alleged violations of both the TCPA and the Missouri Merchandising Practices Act by allegedly misrepresenting to Missouri consumers that the fax messages were sent in accordance with federal law.

    The Cozen team argued that Section 227 of the TCPA violated Fax.com's First Amendment right of freedom of speech. And since the MPA claim was based primarily on the assumption that the conduct violated the TCPA, the team argued that the entire case should be dismissed.

    At Limbaugh's invitation, the U.S. Department of Justice intervened in the suit on behalf of the Federal Communications Commission to defend the constitutionality of the TCPA.

    The TCPA was enacted in late 1991 as an amendment to the Communications Act of 1934.

    The provision prohibiting unsolicited faxes was enacted as part of a larger amendment which included restrictions on telephone solicitations and automatic dialing systems.

    Limbaugh found that the proper test for the constitutionality of a statute that limits advertising speech is the one announced by the U.S. Supreme Court in 1980 in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566, 100 S. Ct. 2343, 2351 (1980).

    Under Central Hudson, the court must first determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it must concern lawful activity and not be misleading.

    The court's next task is to decide whether the asserted governmental interest is "substantial."

    If both of the first two inquiries yield positive answers, the court must then decide whether the regulation "directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest."

    Limbaugh found it was "undisputed" that the unsolicited fax advertisements sent by Fax.com and American Blast Fax are entitled to "a level of protection under the First Amendment."

    The key question in the case, Limbaugh found, was whether the government had shown that it has a substantial interest in prohibiting unsolicited fax advertisements.

    "A governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real. This burden cannot be satisfied by mere speculation or conjecture," Limbaugh wrote.

    "The government has the obligation to demonstrate that it is regulating speech in order to address what is in fact a serious problem."

    Limbaugh found that Congress identified two interests in seeking to ban unsolicited fax advertisements - that unsolicited junk faxing shifts advertising costs from the advertiser to the recipient and that unsolicited fax advertising occupies a recipient's facsimile machine so that the recipient cannot use it for his or her desired business purposes.

    But Limbaugh found that a review of the law's legislative history showed there was "very little discussion" on the specific provision banning unsolicited fax advertisements.

    "It is obvious from the legislative history that Congress did not consider any studies or empirical data estimating the cost of receiving a fax or the number of unsolicited fax advertisements an average business receives in a day before enacting the TCPA," Limbaugh wrote.

    Witnesses presented by the government at a hearing before Limbaugh provided estimates for the cost of receiving one fax, and how many faxes their particular business received on average.

    But Limbaugh said, "There was no evidence as to the actual cost to a particular business over a month or a year. There were only many long hypothetical examples of how much it could cost a business."

    Limbaugh also found that advances in fax technology had significantly ameliorated the effects of unwanted faxes.

    "The evidence presented at the hearing showed that it no longer takes several minutes to process a single page fax. The evidence indicated that it could take as much time as 30 seconds, but more often, it takes 3 to 6 seconds to process. The 'sophisticated and expensive' facsimile machines are more common now as compared to 1991, and even a lower-end fax machine can hold in its memory 60 to 80 pages," Limbaugh wrote.

    Government lawyers argued that several courts had already found that Congress had a substantial interest in enacting the law.

    But Limbaugh found that case law on the issue was "limited."

    In 1994, an Oregon federal district judge held in Destination Ventures Ltd. v. FCC, 844 F. Supp. 632 637 (D. Or. 1994), that despite the "absence of statistical data or national surveys addressing this interest," Congress had "legitimately relied upon the testimony from authorities, as well as contemporaneous state laws and media reports."

    Limbaugh noted that the 9th U.S. Circuit Court of Appeals upheld the Oregon ruling but "did not address the question of whether the government has a substantial interest."

    A federal judge in the Western District of Texas recently looked at the constitutionality of prohibiting unsolicited fax advertisements in Texas v. American Blastfax, 121 F. Supp. 1162, 1167 (S.D. Ind. 1997), but Limbaugh found that "the court simply quoted the holding of the district court in Destination Ventures" before holding that Blastfax's argument that Congress' hearings were not based on sufficient statistical evidence was unpersuasive.

    Limbaugh found that the only other federal court to address the question was the Southern District of Indiana, which upheld the law in Kenro Inc. v. Fax Daily Inc., 962 F. Supp. 1162, 1167 (S.D. Ind. 1997), but never addressed whether or not the government's interest was substantial.

    Limbaugh said he agreed that there is "a potential for a serious problem to arise without legislative restrictions on unsolicited faxes."

    But beyond that speculation, Limbaugh said, he "questions whether the government has met its burden in showing that there was a substantial interest at the time of enacting the TCPA, and whether there is a substantial interest at the present time."

    And even if the government could meet its burden of showing a substantial interest, Limbaugh found that "it cannot satisfy the other parts of the Central Hudson test."

    Since the regulation must "directly advance" the governmental interest asserted, Limbaugh found that the government "must demonstrate that its restrictions will in fact alleviate the harm to a material degree."

    The TCPA, he found, "does not ban all unsolicited faxes, but rather only advertisements."

    As a result, Limbaugh said, fax recipients "can still bear the costs of printing others' messages, even if they strongly oppose the messages' content. The costs of printing political messages, jokes and even some advertisements which are not included within the TCPA's definition, still fall upon the recipient."

    And since there was "no evidence" about what type of unsolicited faxes are causing the harm which the government is trying to alleviate, Limbaugh found that it was impossible for the court to assess whether the regulation directly advances the government's interest.

    Both the Washington and Florida Attorney General's offices testified that after TCPA was enacted, there was an increase in complaints regarding unsolicited faxes.

    That fact, Limbaugh said, calls the law's effectiveness into question because "the court would assume that the complaints would decrease rather than increase."

    Limbaugh found that the law also failed to satisfy the last prong of the Central Hudson test.

    "The regulation cannot be more extensive than necessary. The law requires there to be a 'fit' between the legislature's ends and the means chosen to accomplish those ends - a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served," Limbaugh wrote.

    "The availability of other options which can advance the government's asserted interest in a manner less intrusive to First Amendment rights indicates that the regulation is more extensive than necessary."

    The Cozen team offered the judge a variety of alternatives, including a national "no-fax" database similar to those being utilized for telephone solicitations.

    Limbaugh agreed that the defense's proposed alternative would be less restrictive of the protected speech.

    "This alternative would promote the government's interest, and yet be less intrusive to First Amendment rights. Many states have looked at this problem and found less restrictive means than a complete ban on unsolicited fax advertisements," Limbaugh wrote.

    • From the judge's ruling as described in Pennsylvania Law Weekly:
      The evidence presented at the hearing showed that it no longer takes several minutes to process a single page fax. The evidence indicated that it could take as much time as 30 seconds, but more often, it takes 3 to 6 seconds to process. The 'sophisticated and expensive' facsimile machines are more common now as compared to 1991, and even a lower-end fax machine can hold in its memory 60 to 80 pages,"

      Theft is OK, as long as you only steal a little bit at a time.

      Both the Washington and Florida Attorney General's offices testified that after TCPA was enacted, there was an increase in complaints regarding unsolicited faxes.

      That fact, Limbaugh said, calls the law's effectiveness into question because "the court would assume that the complaints would decrease rather than increase."

      Lemme get this straight. There's no law against something, so nobody files complaints with the Attorney General, because they know they're gonna be told "Fuck off, it's legal, if you don't like it, write your Congressman."

      So they do what they're told. They write (and fax :) their Congressmen, and Congress passes a law against the something. And then they complain to their Attorney General again, saying "Hey, now it's illegal, do something!"

      And that's this fuckweasel's argument for him thinking the law is ineffective? *bitchslap*, HEY, ASSHOLE, is the law against burglary somehow "ineffective" because the police started to get more complaints about break-ins after a law against theft was passed?

      As a final insult, after hiking up the skirts of Justice, he then proceeds to ram it home: Upon realizing that federal courts have exclusive jurisdiction over actions bought by state Attorneys-General, and that State courts judge cases brought by private parties, he rules unconstitutional the right of private action.

      Congress, in a rare display of clue, anticipating that your State prosecutors (having first told you "fuck off, it's legal") will continue to tell you to fuck off by doing nothing to enforce the new law, includes a private right of action. Congress, in effect, is saying "If your idiot Attorney General can't be bothered to bring charges, you can file suit for $500".

      11 years after that, a judge tells you to fuck off, confirming what you already knew - writing your Congressman is a fucking waste of time, even when he does pass the law you require, your Attorney General will still ignore it, and when you try to use it yourself, a judge in the thrall of the Direct Marketing Association will simply throw out the part of the law you need.

      This has to be appealed, and it has to be overturned. A man's home is his castle, and theft by conversion cannot be free speech.

      This judge is an insult to the bench, and his ruling brings the law into disrepute.

    • "There is no rationality behind the government's distinction between unsolicited advertisements and other unsolicited faxes. The recipient still must bear the cost, and the fax can still interfere with the recipient's use of his or her facsimile machine for business purposes," U.S. District Judge Stephen N. Limbaugh wrote...

      Now this is very interesting, actually. What it suggests is that the current law is worded in such a manner that it does not ban all unsolicited faxes, only those unsolicited faxes that contain advertisements.

      So in other words, Congress could pass a law banning all unsolicited faxes of any kind. But it didn't do that. Instead, it differentiated between faxes based on content. That is, in this judge's opinion, unconstitutional.

      When put that way, it sounds reasonable. I'm all for the judicial branch making sure that our laws are properly and constitutionally written.

  • In a victory for a team of Philadelphia lawyers, a federal judge in St. Louis has struck down as unconstitutional a federal law that bans unsolicited advertisements sent by fax, but says nothing about unwanted faxes that don't meet the law's definition of "advertisement."

    The ruling is a victory for a team of lawyers from Cozen O'Connor - Arthur W. Lefco, Michael P. Broadhurst and Julie G. DiSalvio - who represented Fax.com Inc. and challenged the constitutionality of a provision of the Telephone Consumer Protection Act.

    The fax number for the Philadelphia offices of Cozen & O'Connor is 215-665-2013. Start forwarding all the spam you get to their fax machine, and see how long they continue to not have a problem with unsolicited faxes needlessly consuming their electricity, paper, and toner, and tying up their fax machine from receiving/sending legitimate correspondence.

    ~Philly
    • Start forwarding all the spam you get to their fax machine, and see how long they continue to not have a problem with unsolicited faxes....


      When a business sends out faxes hoping to trick somebody into buying some random piece of crap, that's protected expression. But if an individual does it as a form of protest, it will probably be called illegal harassment.

  • Don't fax that judge! (Score:3, Informative)

    by pdqlamb ( 10952 ) on Tuesday April 02, 2002 @12:42PM (#3270702)
    Don't sign up the (stoopid luser of a) judge that ruled spam faxers have a constitutional right to use your connection, equipment, paper and toner. No, he's already stuck his foot in it, and he won't change his mind.

    Instead, sign up all the judges on the appeals court that will hear the appeal, and fax them your junk e-mails, etc. They're the ones who will decide next. If they can't get any useful faxes (like submissions from Fax.com), maybe they'll see reason.

    (flame) Lusers named Limbaugh are a hopeless case.(/flame)

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