CA Appeals Court Upholds Spam Law

Joe Wagner writes: "Criminal penalties for spam, yeah baby! It has just been announced that California State's spam law has been ruled constitutional and valid by California Court of Appeal for the First District: '...we hold that section 17538.4 does not violate the dormant Commerce Clause [of the United States Constitution].' The actual ruling is here. Congratulations to Mark Ferguson and his lawyers (1, 2) for fighting it out for the rest of us..."

only a slight improvement

[Syre]

This law specifically ALLOWS spam to be sent. It just requires that spammers include a valid return email address and that they remove people from their list who want to be removed.

This is great?

It also only covers spammers who have their equipment located in California. All this means is that spammers will use mailservers in some other state or country.

The only good thing I see about this is that it requires the subject to have "ADV:" in it.

I expect absolutely no change in the amount of spam I get as a result of this law.

Re:Brilliant, now...

[13013dobbs]

Is there actually a "spam lobby" anywhere that could prevent (read give money to) politicans from supporting or passing such bills in other states?

Yup. The DMA [the-dma.org]. They want to spam you.

It's about time.

[Philbert Desenex]

Spammers would have you believe that other than your time for "just clicking delete", there's no cost to spam. However, since you and I and all spam victims pay a lot of the cost of spam before purchasing the spamvertised product, market forces on spam are seriously weakened, with respect to market forces on other forms of advertising (radio and Tee Vee broadcast, newspaper and magazine advertising, billboards, stock cars, product placement in movies). For all other forms of advertising, the advertiser pays for the ads up front, before the consumer buys the product. If the ad campaign sucks ("Ring Around the Collar!") or offends (Frito Bandito, anyone?) ad victims can choose to exert market forces on the advertiser. With respect to spam, victims have already paid more than their share of the ad costs before making a decision whether or not to buy the spamvertised product. Market forces apply only weakly to spam, thus requiring government intervention. Criminalizing spam is a step in the right direction.

Spammers are all thieves. Don't forget, don't let your legislator(s) forget it. Down with the DMA!

Even better -- to whom it applies:

[mengel]

Note that it also says, right up front

No person or entity conducting business in this state shall facsimile (fax) or cause to be faxed, or electronically mail (e-mail) or cause to be e-mailed,

(emphasis mine). Not just companies registered in California, nor does the email have to originate or be transferred through, or delivered in Calfiornia -- if the company does any business at all in California, it applies.

I like it!

Great. But now what?

[Kenja]

While this is great and all it wont really reduce the amount of spam I get. Laws like this are not really enforceable given that most spam is anonymous and un-traceable unless you want to spend a lot of time sorting through mail logs.

What's being done to STOP spam? I for one am tired of sorting through my mail looking for valid messages (spam to real mail ration of about 100 to 1). What's more as the years go on (same mail box for five years) my spam gets stranger and stranger [penny-arcade.com] I get more messages in Japanese, Korean, German, Russian and Taiwanese then I do in English.

Get off the lists then ....

[TheViffer]

Go here for more information [the-dma.org] But also note they charge your $5 to do it online. DONT. You can simply mail in a letter (printable from this form), throw on a stamp, and away you go.

And it does work. My junk mail has decreased dramatically.

Re:Brilliant, now...

[trenton]

I'd also like to see a legal procecution kit for this. Not all of us have the money to pay an attorney to procecute someone under this statute. If someone, like the EFF, could put together a list of filings or whatnot, individuals could do all the court paperwork themselves. I'd imagine in many cases you'd get summary judgements (where the judge finds for you becuase the other side didn't show up to court).

I think I'll mail EFF now.

Re:I don't speak lawyer.....

[13013dobbs]

In a nutshell: If you have a previous relationship with a company/person, or if you request it. People can send you ads. However you can still send people unsolicited ads if you include the string 'ADV:' as the first four characters of the subjectline. If you are sending material that you have to be over 18 to possess, you have to have the string 'ADV:ADLT' as the first 8 characters of the subjectline. In all cases, you must include a way o remove yourself from the list.

Double edged sword

[Ioldanach]

Clearly, requiring spammers to behave with some sort of ethics is a noble goal. However, it appears that the judge has decided that this law does not violate the constitution for the wrong reasons. So, as much as it pains me, I must disagree with the judge. The law needs to be rewritten to be more restrictive. My logic follows below.

I read through the judges decision, and here are some interesting snippets which show the judge does not understand the nature of the internet, and the defendant clearly did not present sufficient argument in several areas.

First, respondents argue that the geographic limitations on the scope of section 17538.4 are ineffectual because of the very nature of the Internet. UCE is transmitted via the Internet which functions in cyberspace, a place respondents characterize as being "wholly insensitive to geographic distinctions." (Quoting American Libraries Association v. Pataki (S.D.N.Y. 1997) 969 F.Supp. 160, 170 (Pataki).) Thus, respondents maintain, an e-mail address simply does not logically correspond to a geographic residence.

The problem with this argument is that section 17538.4 does not regulate the Internet or Internet use per se. It regulates individuals and entities who (1) do business in California, (2) utilize equipment located in California and (3) send UCE to California residents. The equipment used by electronic-mail service providers does have a geographic location. And e-mail recipients are people or businesses who function in the real world and have a geographic residence.

That implies that (1) the geographic location of the electronic mail server can be determined by the sender of the mail, (2) that the servers which will be passed through (or at least are at the origin or destination) are known to the sender, and (3) that the residency of the recipient is known to the sender.

Respondents argue that, even if e-mail recipients do have geographic residences, it is simply not possible for senders of UCE to determine the residency of any particular e-mail recipient. Thus, respondents argue that the only way to avoid violating section 17538.4 is to comply with it in every instance. This argument has two fatal flaws. First, respondents ignore the second geographic limitation imposed by section 17538.4: it applies only when equipment located in the State is used. By limiting the scope of section 17538.4 to UCEs that are transmitted via equipment located in the State, our Legislature ensured that the statute would not reach conduct occurring "wholly" outside the State.

Second, the record does not support respondents' claim that it is impossible to determine the geographic residence of a UCE recipient. Both the Attorney General and Ferguson dispute this contention. They suggest that lists of e-mail addresses sorted by geographic residence exist already or can be created and utilized by senders of UCE.

Which implies, again, that the residency of the recipient is known or can be inferred. Both the Attorney General and Ferguson apparently don't know how the assembly of e-mail address lists occurs. When compiling a list of addresses who might be interested in a particular subject, address assesment almost never occurs.

If I were to decide to assemble a list of addresses that might be interested in my product, I could go to a newsgroup, download all the headers available, and compile the attached e-mail addresses into a list. However, that list of e-mail addresses has no other information embedded within it. Any of the e-mail addresses listed may be hosted with a server having a privacy policy which prevents disclosure of the end user's address. Therefore, I have no way of determining what the residency of those recipients is.

Respondents argue that another practical effect of section 17538.4 is that it conflicts with statutes regulating UCE that have been enacted by other states. Notwithstanding the fact that, to date, at least 18 states have enacted laws regulating UCE (Heckel, supra, 24 P.3d at pp. 411-412), respondents have identified only one actual conflict pertaining to one requirement imposed by section 17538.4. Section 17538.4, subdivision (g), requires that the subject line of the UCE include "ADV:ADLT" as its first eight characters if the message contains adult information. Respondents contend this requirement directly conflicts with a Pennsylvania statute which requires that the first nine characters of a subject line of a UCE containing explicit sexual materials be "ADV-ADULT" if the UCE is transmitted to a person "within the Commonwealth." (See 18 Pa. Cons. Stat. section 5903(A.1).)

Respondents' argument that section 17538.4 conflicts with Pennsylvania law fails at its base because they have not established that the geographic limitations imposed by section 17538.4 are ineffectual.

Here lies the most important part of the argument, conflicting state laws. The entire basis of the court's rejection of the unconstitutionality hinges on the assumption that the residency of a UCE recipient can be determined. If it is impossible to determine the residency of a UCE, the law becomes unconstitutional.

How many free e-mail services do not require an indication of a user's residency? How many of those servers that do require it verify identity? For an entire segment of the population, it is completely impossible to determine the residency of the users, thus, this law should be found unconstitutional.

MOD THIS ASSHOLE DOWN!

[Anonymous Coward]

http://spam.abuse.net/spambad.html [abuse.net]

quote from findings

[Anonymous Coward]

I particularly liked this little bit:

That respondents consider section 17538.4's requirements inconvenient and even impractical does not mean that statute violates the Commerce Clause. Further, if respondents choose to comply with section 17538.4 all the time (so they can avoid having to determine whether they are corresponding with California residents via equipment located in California), that is their business decision. Such a business decision simply does not establish that section 17538.4 controls conduct occurring wholly outside California.

Re:only a slight improvement

[Howie]

...than email can be filtered server-side to cull it out.

I can do that already far more effectively using tools like procmail [ii.com] and SpamAssassin [taint.org]. SpamAssassin in turn can use various RBLs and Vipul's Razor [sf.net] (recently mentioned here), if you choose to.

That combination has saved me from recieving and processing about 20 messages in my personal mail today alone, not to mention the other benefits of auto-filing/trashing/redirecting that using procmail gives me.

Re:I love this definition of SPAM:

[Sodium Attack]

Hmmm...Slashcode seems to have confused "(Score: 4, Insightful)" for "(Score: -1, Did not read the linked documents.)"

The law applies to anyone doing business in California, whether or not they are located in California. If you ship a product to a customer in California, for example, you are doing business in California and are subject to California law.

Re:Freedom of speech, except for Spammers...

[Tackhead]

> but if fucking C++ source code can be considered speech, why isn't "Do you want a longer penis?"

Because of this:

Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit. The ancient concept that ancient concept that 'a man's home is his castle' into which 'not even the king may enter' has lost none of its vitality. We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient. That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."

Chief Justice Burger, U.S. Supreme Court
ROWAN v. U. S. POST OFFICE DEPT.,
397 U.S. 728 May 4, 1970.

Or, in CyberPromo vs. AOL:

"In sum, we find that since AOL is not a state actor and there has been no state action by AOL's activities under any of the three tests for state action enunciated by our Court of Appeals in Mark, Cyber has no right under the First Amendment to the United States Constitution to send unsolicited e-mail....."

Or CompuServe vs. Cyberpromo/Sanford Wallace

"Defendants' intentional use of plaintiff's proprietary computer equipment exceeds plaintiff's consent and, indeed, continued after repeated demands that defendants cease. Such use is an actionable trespass to plaintiff's chattel. The First Amendment to the United States Constitution provides no defense for such conduct."

Leaving aside the fact that the First Amendment is a constraint on Congress, not private operators, it seems clear that commercial speech is (rightfully) not protected to the same extent as expressive speech.

Spammers have freedom of speech

[cje]

If I want to set up a stand on my front lawn and tell everybody about how great my penis enlargement system works, I can .. because I have free speech. If I want to promote my penis enlargement system on my Web page, I can .. because I have free speech. If I want to rent a hotel convention center and hold a series of meetings raving about the effectiveness of my penis enlargement system, I can .. because, well, you get the idea. Spammers have, and always have had the right to free speech. You are going one step further by claiming that massive (and often distributed) attacks on open relays and ill-prepared ISPs constitutes "speech." I must admit that this is one of the more puzzling arguments I've heard in favor of spammers.

I realize that the days of the "Mom and Pop" ISP have pretty much gone the way of the dodo, but back in the mid-1990s there were quite a few of them. Unfortunately, many of these ISPs (which were pretty bandwidth limited and served a relatively small amount of users) were put out of business because of the overhead effects of spammers .. not just from a bandwidth perspective, but from the perspective of computational resources as well. Back then, stories about these ISPs closing up shop were a dime a dozen.

This isn't to say I don't like spam, but if fucking C++ source code can be considered speech, why isn't "Do you want a longer penis?"

I'm starting to suspect that I've been trolled here, but assuming you're serious .. when was the last time that you took a piece of "fucking C++ source code", purchased a list of 20 million email addresses from some promoter, sniffed out an open mail relay on some poor boob's network, and unleashed a bulk mailer bot to share your "speech" with the world? You're missing the point. Nobody is saying "MAKE MONEY FAST!!" isn't speech that is subject to First Amendment protection. What is being said is that the method of delivery is illegal. A spammer has no more right to steal the resources of others to mailbomb millions of people than I have to break into your house while you're sleeping and try to sell you a can of oven cleaner.

Maybe the guy selling penis enlargment sauce really feels deeply about it and wants the world to know how truly great his product is.

Great! Then he can set up a stand on his lawn, put up an advertisement on his Web page, or put on a convention at his local Holiday Inn. Nobody is saying he doesn't have a right to promote his product. What people are saying is that there are some methods that cannot be used to do so. This has been true in the past, and it is true today.

Re:Brilliant, now...

[tgeller]

The SpamCon Foundation Law Center [spamcon.org] has as close to a "prosecution kit" as you're ever going to find. No, it doesn't offer legal advice: Only a lawyer can do that. However, it *does* have court documents from past successful cases, a discussion board [spamcon.org] to check with other folks on the details, and other info.

But you still have to file, and see the case through to the end. And then collect. Simply put, legal action is difficult. But each and every one of you can do it.

Re:Even better -- to whom it applies:

[queequeg1]

The most recent issue of the Oregon State Bar Bulletin had a pretty decent article on asserting personal jurisdiction over companies that have sites hosted in other states. Although many of the cases cited in the article would have direct application to spam laws.

Personal Jurisdiction in the Silicon Forest [osbar.org]