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Fax-Spammers fax.com Sued For 2.2 Trillion 353

Posted by timothy
from the let's-think-this-through dept.
linuxwrangler writes "Fed up with junk faxes which have been illegal since 1991, a Silicon Valley businessman has launched a lawsuit against junk faxer fax.com. Steve Kirsch seeks the damages provided in the law: $500/fax for the last four years. If certified as a class-action on behalf of the 3 million receipients of the faxes that fax.com claims to send each day the total damages would reach 2.2 billion even without invoking the "triple-damages" clause for "willful" violations. Federal regulators hit fax.com with a 5.4 million fine just two weeks ago after the company ignored numerous warnings from the FCC and was found to be in "flagrant violation" of the law. Fax.com maintains that their actions are protected by the constitution and court decisions in this case could lay the foundation for the future of junk email regulation"
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Fax-Spammers fax.com Sued For 2.2 Trillion

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  • by xintegerx (557455) on Thursday August 22, 2002 @10:55PM (#4124196) Homepage
    Suing a DOT com for 2.2 Trillion dollars...

    This isn't 1999 ;)

    "Fax-Spammers fax.com Sued For 2.2 Trillion"
    • no, they have 2.2 Trillion in 1999. Now they are at $2.20 in 2002. :)
  • by Mustang Matt (133426) on Thursday August 22, 2002 @10:55PM (#4124197)
    Check out this letter I got after reporting one:
    Mo Junk Fax Response [pingalingadingdong.com]

    I was a little disappointed to say the least. This fax was hitting me every morning at 3am.
    • by Anonymous Coward
      That just says "we can't start new legal action under this law while a federal court is reviewing whether this law is legal."

      Why don't you try other routes? Specifically, a harrasment case of some sort. Walk into small claims court, claim they are harrasing you, get a temporary injunction against them. Suggest others to do the same.

      I can't imagine that not working; if a random person were calling you on the telephone every morning at 3 am, the stalker laws would come down on them quite painfully.
  • by Anonymous Coward
    if you go to http://www.fax.com/ [fax.com] you will see that Fax.com isn't bad, they care about missing children!

    they send faxes about missing children! Without them children would stay missing.

    what honerable and praiseworthy advertisers they are.

    how long is it going to be until you start getting the 'missing children' spam email? I already get them in the real mail, missing children on one side of a ad, and the otherside, filled with useless spam.



    • This post was obvious sarcasm. It's mocking the tendency of detestable companies (tobacco companies, et. al) to wrap themselves in some
      public relations [no-smoking.org] charade of helping kids or senior citezens to make it less palatable to punish those companies. Oh, don't sue the RJ Reynolds out of existence! I depend on them for my warm dinner at the old-folks home!
      Seth
    • Not his not good. If the tobacco company sees this ad, they are going to start putting missing children on cigarettes box.
  • Well, they're claiming they can do this due to 1st amendment rights, which do indeed give them the right to publish whatever they want...

    However, they should have to pay all of our phone bills and paper costs... plus trash bags, disposal costs, a reasonable fee for our time disposing of their waste, etc.

    -T

    • by Squareball (523165) on Thursday August 22, 2002 @11:07PM (#4124251)
      Thank god that the first ammendment only gaurantees the right to speak, not the right to be heard!
    • by bleckywelcky (518520) on Friday August 23, 2002 @12:09AM (#4124488)

      But see, the problem with the faxes is that they are imposing their message upon us. Fine, they can express whatever they want through the 1st amendment, and whoever wants to listen can, and neither the broadcasters nor the listeners can be barred from doing so. However, people can also choose to not listen. But, by sending a fax to a person who does not want to listen to your message, you are forcefully making them listen to your message. This is an extension of expression that the 1st amendment does not cover. The first amendment was created as an agreement between people and the government - the government can not bar anyone from expressing themselves. However, junk faxes are between people and people (the company being composed of other people, executives, boards, etc) and the 1st amendment makes no guarantees that you have the right to express yourself to any other person. In fact, people deny the act of expression to other people every single day. Don't like where a conversation is going with another person? Walk away - you are not allowing them to express themselves to you. Don't like something you're reading? Throw it away - you are not allowing the author to express themselves to you. Even companies deny expression to employees every day. If you voice an opinion that the company doesn't like, they fire you - you are no longer allowed to express yourself to or at the company.

      However, how can we deny expression by one company trying to fax us something while allowing expression by another company (or indivdual) trying to fax us something. We can't just simply walk away from the offending company (unplug the phone line) as that disables us from receiving expressions from others. Well, we could just contact the offending company and let them know that you no longer wish to allow them to express themselves to you, but my guess is that asking doesn't work (otherwise we shouldn't have a problem here). So, you need some way to bar them from expressing themselves to you... a government - which is the sum of all the people in the country, if the offending company wants to live in our country, they need to obey our standards and rules - is used. So, the government (who has the power) acts on behalf of the individual (who has no power) to enforce the wishes of the individual upon the offender. And the individual's wish is finally fulfilled.

      The problem we now run into is that the offending companies try to spin the situation into an attack on their 1st amendment rights by the government. Instead of telling the public that the government action being taken (or attempt at being taken) is on behalf of another individual, they claim that the big government is just trying to shut them down while violating their 1st amendment rights. But, the truth of the matter is that the government is not even involved with the company, it is acting as an agent on behalf of the individual and solely represents the invidual.

      The 1st amendment does not guarantee one party the right to forcefully deliver their message to another party, it simply guarantees that the government, acting on its own, can not deny a party the ability to express themselves to another party if both parties wish to be involved in the expression.
    • It's not like they have the right to publish anything they like on your or my paper.
  • by 1010011010 (53039) on Thursday August 22, 2002 @10:57PM (#4124207) Homepage
    I wonder if there are any fax machines that can be programmed to block faxes from certain numbers, or by other identifying data.
  • by Malduin (207683) <virtual_primate@ w e b m u n k e e.com> on Thursday August 22, 2002 @11:08PM (#4124258) Homepage
    2.2 billion x triple-damages = 6.6 billion from fax.com.

    Estimated world population by US Census Bureau [census.gov]: 6,245,356,272

    6,600,000,000 / 6,245,356,272 = 1.06

    So, basically, that's enough to give every person in the world a dollar...or enough to get Worldcom back on their feet for another year or two!
  • More Coverage (Score:2, Interesting)

    by wiZd0m (192990)

    http://www.nytimes.com/reuters/technology/tech-t ec h-spam-fax.html
  • by truefluke (91957) on Thursday August 22, 2002 @11:10PM (#4124261) Homepage
    i want every lawyer on the prosecution to put his pinkie to his mouth each time they say the damages amount.

    "2.2 trillion....(pinkie)dollars.*snicker*"

    Judge: Would the prosecution PLEASE refrain from doing that pinkie thing every single time? You're getting on my nerves...

    • So glad you put up that email, truefluke. I was desperate to put up a sarcastic response but didn't want it to degenerate into Euros vs USians flaming.


      Man, the US legal system is screwed if lawyers can go to court and make those sort of suggestions - what kind of sick drugs _do_ they feed trainee lawyers at college? I am so glad you are laughing as well...

      That lawyer is bringing your whole legal system into disrepute, let's face it, declarations like this mean the rest of the world will completely disregard anything else your lawyers try to tell the world. Maybe they shouldn't let lawyers use calculators with more than 6-character displays.


      Disclaimer: our lawyers are probably equally as mad, they just show it in more subtle ways...

    • I want the judge to just start laughing, along with everyone in the courtroom, and say "HA HA HA! That's like asking for kajillion zillion dollars!"
  • If you do, and regulations go into effect regarding SPAM e-mail, then each and every one of us has a case. Unless the legislation that comes out of this suit has a "non-retroactive" clause (or something along those lines), then we can all take out our SPAM-induced "Net Rage" out on the sorry saps that pull this crap.

    After all, isn't that the American dream? Turning a profit on the misery of others? Won't it be nice to turn the tables on these low-lifes and profit from their misery?

    And what, praytell, will become of the sneaky bastards like the infamous Crushlink, the ones that lead us on into giving up our addys so they can sell the list to the SPAM crowd? If I were a SPAMer and fax.com loses, I'd be running for the hills...
    • Won't work if you live in the states. Constitution protects you from expo-facto laws (think I got that right).

      In other words, if a law is passed making something you did yesterday illegal, you can't be prosecuted for it -- because when you did it yesterday, it was legal.
      • It's ex post facto, and it applies to both the Congress and to the States. See here [uic.edu].

        The prohibition doesn't apply in this case because this anti-fax-spam law has been on the books since 1991, so all of fax.com's supposed violations clearly would have taken place while the law was already in force.

    • Even more important - save your opt-out emails, and take screenshots of those that don't send you a confirmation.
  • by Alsee (515537) on Thursday August 22, 2002 @11:29PM (#4124333) Homepage
    The article says FAX.COM claims it send 3 million faxes per day. The lawsuit is for the last 4 years. At $500 per fax.

    3,000,000*365*4*500 = 2.2 TRILLION DOLLARS.

    And then theres the possibility for TRIPPLE DAMAGES if the judge rules the violations were willfull. It's completely up to the judge, but IMO (IANAL) FAX.COM's actions were blatantly willfull as defind by the relevant law. If convicted, not assessing triple damages would be a gift.

    We have a fax machine. We've been getting junk faxes semi-reularly. With luck maybe we'll be getting a peice of the pie when this is over. I hope it's triple damages (grin), not that it would change the size of the check. I'm sure single damages is enough to bankrupt them nearly a million times over.

    -
  • Judging by the corporate scandals coming to light as of late, that figure is probably close to the CEO's yearly salary.
  • that the person who submitted this article (linuxwrangler) is really none other than.... Dr. EVIL!!! ;-)
  • With that much $$$ this guy could afford to purchase Iridium. Finally, free satellite Internet access for everyone! ;-)
  • There's a rather interesting trend going on with the regulation of commercial speech in America. You can read about it here. [abuse.net]

    Just four years ago in an advertising class I took, the professor stood upon the mount and proclaimed that advertising isn't "protected free speech." Take that as you will.

    Ahh, crap, I'm getting all varklempt. Talk amongst yourselves! Here, I'll give you a topic. With fax.com's assertion, the trend continues towards paid messages being allowed to be progressively more intrusive. Discuss!
  • by Max Nugget (581772) on Friday August 23, 2002 @01:04AM (#4124676)
    (Slightly O/T) Has anyone else noticed that in the past year or so telemarketers have started leaving messages on answering machines? This seems to be an increasing trend. For instance, today I came home to find a 75-second solicitation for a trip to Disyneyland (apparently it's their 100th anniversary, according to the message) on the anwering machines for both lines in my house. Now, granted, this may not be a huge problem for most people, but I've actually had a number of occasions where my answering machine has filled up with telemarketer messages and caused me to miss "real" messages as a result. In my situation, and that of others who have similar problems, should I not be able to argue that the inconvenience of telemarketers (or at least their recent practice of leaving messages)is not "insignificant"? If I have a relatively limited amount of recording space on my digital answering machines and I'm getting numerous 60+ second advertisements every day, I think this is quite unfair, and a good example of the not-so-insignificant problems telemarketing perpetuates.
    • I just got the Disney call again a few days ago. This is the third time I've gotten it. I'm sure it's a scam of some sort, but I don't know the full details. Does anybody have them?

      It's this long message about how it's Disney's 100th anniversary and it's a free trip to Disney World, blah-blah-blah. Anybody know what the catch is? Two nights free at a hotel, but you have to pay for everything else? Free entrance to Disney World, but again you gotta pay everything else? Forced to listen to a condo advertising spiel while you're down there? It's gotta be something like that.

      They haven't filled up my answering machine yet, but I do get a lot of voice spam. We stopped answering the phone about a year ago. Pisses off some of our friends, ("Why are you screening your calls?!") but not jumping up to answer the phone every time it rings is oddly liberating. Didn't realize I was a slave to the phone company. Makes you re-evaluate a lot of the little things like that in your life.

    • by Smack (977)
      It's illegal to make automated calls to people. So if you actually did pick up when it rang, the machine wouldn't start talking to you. Sometimes it just hangs up, which is quite disconcerting.
  • by Anonymous Coward

    ...and court decisions in this case could lay the foundation for the future of junk email regulation...

    No they couldn't. As we've seen time and time again, relevant decisions in other mediums--even similar mediums such as fax, phone, or cellular--always seem inapplicable to the Internet. For some reason, our legal and judicial systems incorrectly think that anything having to do with this new-fangled Internet thing must require its own special and distinct legislation.

  • by Wolfier (94144) on Friday August 23, 2002 @02:24AM (#4124890)
    Then we should go forward and hack their web servers and deface their home page.

    It must be legal. After all, if they can legally intrude our fax system and put messages on it, we can intrude their computers and put messages on them. Simple.

    More evil idea that should be legal in California - maybe we can put an "opt-out" email address on the defaced web page that says "If you want to unsubscribe from the deface list, please email l337@yahoo.com with your full web page address"
  • The Law in question (Score:5, Informative)

    by borcharc (56372) on Friday August 23, 2002 @02:55AM (#4124950)
    Title 47, Section 227(b) of the United States Code.

    This law makes it illegal "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." The term "unsolicited advertisement'' is defined as "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission." Damages are set at actual monetary damages, or $500, whichever is greater. The court may increase the damages up to three times this amount if it finds the defendant "willfully or knowingly" violated this law.

    Under federal law, these unsolicited faxes are illegal, but fax advertisers simply ignore the law because few people know about and exercise their private right of action.

    Jurisdiction

    State courts are expressly given jurisdiction under 47 U.S.C. 227(b)(3). The following federal court cases have found that state courts have sole jurisdiction under this law:

    International Science and Technology Institute, Inc. v. Inacom Communications, Inc., 106 F.3d 1146 (4th Cir. 1997)

    Chair King, Inc. v. Houston Cellular Corporation, 1997 WL 768609 (5th Cir. 12/15/97);

    Foxhall Realty Law Offices, Inc. v. Telecommunications Premium Services, LTD, 975 F.Supp. 329 (S.D.N.Y. 1997)
  • Make them eat one can of spam, for each piece of spam, they have sent. Do the same to e-mail spammers.
  • Seriously, at least twice a week I get these calls (and usually at around 3 or 4AM...). And I have never had a fax machine hooked up to my phone line. No fun. But that leads to the question: How does somebody without a fax machine, and therefore unable to read how to get off their list, get off their list? (Assuming of course that they actually take people off the list if they request. But being spammers I doubt it.)
  • dr evil voice:
    Why ask for 2.2 trillion when you can ask for 2.2 ... BILLION!?!
    Muahahaha...muhaha...mmmmuuuahahahhaha haa...
    • A billion, a trillion.... what's the difference.... We should quarrel over who killed who, this should be a happy occasion!

  • by sik puppy (136743) on Friday August 23, 2002 @05:43AM (#4125294)
    I had a battle with fax.com a couple of years ago. By fluke i happened to find out who was ordering the spam. It was the Center for missing and exploited children. They were selling advertising to various people and trying to use the charity as a cover to do what is illegal to do commercially. (anti-telemarketing laws specifically exempt political and non-profits from laws governing them, but this does not apply to faxes).

    So I complained to Sun and Computer Associates (the two biggest donors to the Center) and very quickly I got an appology from the center's director and the junk fax stopped. Until about 2 months ago when it started up again.

    text of letter:

    We are sorry that you have been inconvenienced
    with the fax transmissions sent out by Fax.com.
    If you will provide me with your fax numbers, I
    will contact Fax.com and request that they remove

    your numbers immediately from their database.

    Our ability to use Fax.com to distribute posters
    of missing children has been a great success and
    has resulted in the recovery of a number of
    missing children. We certainly understand your
    request and will make every effort to stop the
    transmissions to you when you provide me with your

    fax numbers.

    I am forwarding a copy of your fax message request

    to Fax.com
    --
    Ben J. Ermini, Director
    NCMEC Missing Children's Division
    703-837-6236

    and the response to my reply:

    Thank you for your rapid response. I have directed Fax.com to remove your fax
    number from their database.

    Fax.com has assured us that all NCMEC poster fax transmissions are sent to fax
    numbers that have agreed to participate in the poster distribution program.

    We are sorry for any inconvenience that we have caused you.

    Ben J. Ermini

    ---
    so once again spammers lie. My fax is unlisted etc, and never opted into any such program.

    sorry if this is long winded by fax spammers are even worse than email spammers in my book

  • I keep reading the first amendment over and over. I just can't find where it says I have to pay for another person's free speech. Can somone enlighten me as to how this is a "Free Speech" issue as opposed to a theft of services issue?

  • I was thinking that it should be possible to create a tarpit for junk faxers.

    The premise is that almost every junk fax we get at work has 1234567 as the calling telephone number. Using a filter on the incoming number that detects this and similar obviously bogus numbers, the machine could continue to take the fax forever (and not print it of course).

    The obvious problem is that it takes up the fax line, but if you have 2 fax lines or set it to be tarpit in the middle of the night (when this crap often arrives), then we might have a solution.

    Also, please remember to take junk faxes and recycle them so that other people in the office don't see them. Some of your dumber office-mates might actually respond to the fax.

    I also write down the 800 numbers listed on it to call on pay phones when I have the spare time (like waiting at airports) to waste the spammers' money.

  • After canceling my whining liberal newspaper earlier this summer, they are now tossing a free advertising section on my lawn, essentially all the paper ads and classifieds w/o the news and editorials. Now, every week, I have to walk over, pick up this unsolicited garbage tossed from a drive by delivery person and heave it into the trash. Some of the neighbors are just tossing them back onto the street.

  • by Ironica (124657) <pixel&boondock,org> on Friday August 23, 2002 @02:57PM (#4128540) Journal
    This, along with the SMS thread from yesterday, raises an interesting point. What fax, email, and SMS spam have in common is that the reception is automated. If I get a telemarketing call, I can hang up before they've had a chance to deliver their message. But, by the time I see a fax or an email or a text message so I can make that decision, they've already sent the whole thing to me. The same problem comes up with recordings left on answering machines, it seems... I hadn't encountered that yet. (BTW, many digital answering machines allow you to set a limit on the length of the message recorded, so you can cut them off at 30 seconds.)

    Freedom of speech is a guarantee that the government can't prevent you from communicating an idea except for under very specific circumstances where that idea is very likely to cause harm. It is NOT a guarantee that you can inundate any particular person with your communication. Most importantly, it is not an obligation on the part of the recipient to pay for your message (in paper, toner, tied up phone lines, time spent downloading, per message fees, etc.). Maybe we need a constitutional amendment that protects the individual's right to dispose of their resources how they see fit.

    Junk snail mail is a different animal, because the cost of sending out the message is (1) non-trivial and (2) borne by the sender. Between printing and postage, they are spending several cents per message, which necessarily limits their willingness to send out mail to known unwilling folks. It also ensures that the practice will be limited to "legitimate" companies (or at the very least, ones with decent-sized budgets). The self-limiting mechanisms of traditional junk mail tend to keep it at a manageable level.

    We do need to re-evaluate freedom of expression in light of automated message reception. It does change the scope and mechanism of free expression a great deal, as well as shifting the costs (monetary and non-monetary) onto the recipient. I don't think that's what the founding fathers had in mind when they wrote the first amendment.

"If I do not want others to quote me, I do not speak." -- Phil Wayne

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