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Privacy United States Your Rights Online

Opt-In Junk Fax Law Survives Court Challenge 131

Posted by timothy
from the undue-burden dept.
An anonymous reader writes "From Privacy.org: The U.S. Court of Appeals for the 8th Circuit has upheld (PDF) the Telephone Consumer Protection Act (TCPA) of 1991 against a First Amendment challenge. In the case, Missouri v. American Blast Fax, junk fax company Fax.com and Wal-Mart argued that the law violated the First Amendment because it imposes fines upon companies that send fax advertisements without the consent of the recipient. The case is the latest court victory for opt-in privacy laws." I hope the same logic is applied to spam.
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Opt-In Junk Fax Law Survives Court Challenge

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  • by buckminster (170559) on Sunday March 23, 2003 @03:07PM (#5579054) Homepage
    I'd be interested in hearing resports from individuals who've succesfully sued after receiving unsolicited commercial faxes. If you won, were you able to collect?
    • Same here. Some damned mortgage company in the Philly burbs has somehow gotten hold of my home fax number and keeps sending me shit I don't want or need. I've started reading up on the junk fax law, and I'm thinking about taking it for a spin in the Philadelphia court system, for shits and giggles (and ~$500 per unsolicited fax those assclowns have sent me).

      ~Philly
    • One was a $1000 judgment that was paid and the other 2 were settlements provided before I even filed.
      My junk fax case was dismissed due to a ruling 'made in error I might add' by a local circuit judge, however arguments concerning its appeal was heard last month.

      Anyone folks, do some research. It will take a weeks worth of solid, full day, research, but you can file your own suits and collect from these scum. There is a minimum $500 statutory damage for each violation that can be trebled if you can show the violator 'knowingly or willfully' violated the law. It doesn't matter that they did not know the law or not. If they knowingly sent the fax, and that fax was against the law, then they are subject to those treble damages, so then each violation is $1500. I have several cases just waiting to be filed this summer when I have a bit more free time.
    • by Anonymous Coward
      I have personally collected over $100,000 over the past 4 years. Cashed the checks. A friend of mine in Missouri has brought over 700 suits. An Illinois case won 6.5 million in a junk fax class action.... and the checks have already cleared.... paid out $4 million already. Here is just a partial list of cases where people won those cases:
      • Zelma v. Total Remodeling, Inc., 334 N.J.Super. 140, 756 A.2d 1091 (Super. Ct. N.J. 2000)
      • Robinson v. Carrao, No. 96-06124-I (D. Ct. Tex. Feb. 11, 1999)
      • Nicholson v.
  • by B3ryllium (571199) on Sunday March 23, 2003 @03:07PM (#5579055) Homepage
    If IBM patented Spam, the world would be a better place.
    • by Zeinfeld (263942) on Sunday March 23, 2003 @03:22PM (#5579117) Homepage
      If IBM patented Spam, the world would be a better place.

      If you had read this months Tech Review you would know that IBM policy is to allow open licensing of its patents. As a result they earned $10 billion on their patent portfolio last year. Universities file patents at the same rate (3,500 a year) but generally license them on sole license terms, netting only $1 billion.

      So what you should hope is that MIT, or better yet Harvard had invented SPAM and patented it. History demonstrates that they have been much better at keeping technology off the market.

  • by Animats (122034) on Sunday March 23, 2003 @03:07PM (#5579056) Homepage
    It's already been held to be constitutional to limit spam. That was settled in Ferguson vs. Friendfinder last year.
    • Sort of. (Score:5, Informative)

      by www.sorehands.com (142825) on Sunday March 23, 2003 @03:36PM (#5579184) Homepage
      In Ferguson v. Friendfinders the issue was not free speech, but the application dormant interstate commerce clause of the constitution. This is the prohibition of the state putting a heavier duty on an out of state reisdent to do business than in an state resident. In the Washington laws' cases, the court's decision was that the state was permitted the labeling of SPAM. That it was labeling and identification, not stopping and to stop on a request.

      This is different from saying, you can't send SPAM prior to permission being given.

      • Gee, I haven't heard the expression dormant interstate commerce clause in a while!

        I think you and other refer to another case, which upheld Washington State's antispam law, Heckel v. State [wa.gov].

        I looked up material [eff.org] regarding what I think is this case and see you're right that it is a commerce clause case, but there are first amendment overtones [eff.org] that perhaps was not argued or the court overlooked. I'm not especially familar with this case, but do wonder about the possibility of 1st A. arguments.

        In any event,
        • The funny thing in Ferguson, is that they are both in California. The case is applicable as any case in any state appeals would be. But, when there are no (or few) rulings on a specific law or issue the courts will look at other states, circuit courts for guidance.

        • Did the California Supreme Court deny review?

          Yes, they did. The case is now back at the trial court level. That case has chewed up huge legal resources.

          Friendfinder is still spamming, too. Got one today.

    • by Zeinfeld (263942) on Sunday March 23, 2003 @03:43PM (#5579204) Homepage
      It's already been held to be constitutional to limit spam. That was settled in Ferguson vs. Friendfinder last year.

      Yes but the first court that heard the Nixon case had a judge who was a complete idiot and rulled that the junk fax laws were unconstitutional. The judgement basically said that the judge thought he knew better than Congress. He basically dismissed all the evidence that junk faxes cause the victims unnecessary expense on flimsy grounds and then claimed that there was nothing to support the law.

      I did not expect the original Nixon judgement to stand. Fortunately it was completely unreasonable and the reasoning plain stupid. However there is an argument that the judge made (not the defending council, the judge, which kinda shows what an idological twit he was), that may well stand. That is that the junk fax law is overbroad since an opt-out list like there is now for junk marketting calls could meet the same requirement without restricting free speech.

      I have been pushing for the spam laws to include a one-way encrypted opt out list provision for this very reason. I think that ultimately the Nixon argument might hold in the case of spam, especially since the cost per spam is less.

      Incidentally, I got a piece of info from the Microsoft lawyers on the reason they are taking the line they are on the Washington state spam law. The piece that has not made the public yet is that the scheme the DMA is currently up to is to pass a law in DC that guts all the state spam laws and replaces them with a law that says that ISPs MUST deliver all spam from DMA members. The plan of the DMA is to bribe enough members of Congress to pass an 'anti-spam' law that is in fact a 'pro-spam' law.

    • Old news, but so was Washington's [wa.gov], and the US Supreme Court [supremecourtus.gov] let it stand. [usatoday.com]

      OT, but the Microsoft-sponsored gutting [slashdot.org] of Washington's antispam law is all but dead. [wa.gov]

  • Fax Spam (Score:1, Redundant)

    by Mephie (582671)
    I hope the same logic is applied to spam.

    At the very least it's a step in the right direction.

  • by coke_dite (643074) on Sunday March 23, 2003 @03:08PM (#5579060) Homepage
    I work in a government office, and we receive a LOT of unsolicited faxes. I've found that a simple phone call can get almost all the traffic to stop immediately. Granted, this is a pain in the ass and it's time-consuming, but with four phone calls, I've managed to completely get rid of all our unsolicited faxes! People are usually much more polite about no longer sending faxes, but (here, at least), the laws are stricter, since receiving a fax actually costs money (the paper it's printed on and the ink it uses up add up to a lot of money over a year).

    The people I'm working with have been receiving these faxes for YEARS, but no one ever thought to call the company to get them to stop.

    • by The Ape With No Name (213531) on Sunday March 23, 2003 @03:13PM (#5579081) Homepage
      since receiving a fax actually costs money

      Can we infer that receiving a spam does not cost money? In order to build the case against spam, we have to show that it does cost money. In our case, server upgrades, electricity and hours worked.
      • Lets not forget call-charges for people on dial-ups, or other metered services. I have heard cases of hackers being charged for damages on wasted processor time - so why not charge spammers in the same way for the unauthorised usage of your mail servers resources?
    • Calling the company works well enough for faxes, but it's a shame that spam can't be stopped so easily. Most of the time email addresses are shut down before you can "unsubscribe" and a lot of the opt-outs are just confirming your email addy...so sad...
    • I have seen a few offices where the fax machine is only used for contracts that are important and need a hard copy so that even if the receiver tries to fake it they can't. Other than that most of them have switched to email(sending 25 pages over fax is plain stupid now).
      The fax machines are switched on only when the sender calls up the receiver so the problem of junk spam is totally eliminated.
    • by trotski (592530) on Sunday March 23, 2003 @03:45PM (#5579208)
      Well, none of us ever click on the stop-sending-me-this button, with good reason. When the spammer knows that theres a real person at the receiving end they INCREASE the amount of spam they send you, and tell all of they're spamming friends.

      The only thing the company you call will do is sell your phone number (for more money!) to more companies and the amount of fax-span you get will INCREASE. It's sad but true.

      • When the spammer knows that theres a real person at the receiving end they INCREASE the amount of spam they send you, and tell all of they're spamming friends


        Somewhere an english teacher is crying and doesn't know why.
      • Well, none of us ever click on the stop-sending-me-this button, with good reason. When the spammer knows that theres a real person at the receiving end they INCREASE the amount of spam they send you, and tell all of they're spamming friends.

        The only thing the company you call will do is sell your phone number (for more money!) to more companies and the amount of fax-span you get will INCREASE. It's sad but true.

        Uhm.. When a fax is sucessfully sent, the fax machine reports the success to the sender. I

    • by gad_zuki! (70830) on Sunday March 23, 2003 @04:32PM (#5579379)
      >I've found that a simple phone call can get almost all the traffic to stop immediately.

      Yeah, because they know they got caught. Its illegal to spam fax and they're more than happy to stop. They much prefer that than going to the authorities or starting a civil law suit. I'm sure they were VERY polite.

      "Oh sorry about that, we must have accidentally put you on our list."

      Bullshit.
      • Also, spammers tend not to like spamming actual government offices; such spam carries with it the risk that you spam some important person who begins calling for IRS audits of the spammer and so forth. Since the types of scumbags who spam tend to play fast and loose with their taxes, they really don't want to get audited...

    • by RonVNX (55322)
      I've called plenty of times for plenty of different senders. I have yet to get through to any of them.

      Aside from the fact that no one should have to make a call to stop being stolen from, it just doesn't work.
      • Note that this person says they work in a US government office. While it's unlikely, a fax spammer wouldn't want to risk calling down several metric assloads of red tape on his business. Private citizens are easier to deal with; only one in a few thousand at most will follow up all the way into court. On the other hand, all it takes is just one spam fax to the wrong person in the IRS to have a very detailed audit coming your way.
  • by Anonymous Coward
    ...the power of a cluster of these court cases! We could brute-force civilization toward the better. Who's with me?
    • by Anonymous Coward
      i think america is doing quite enough brute-forcing of civilization right now, thank you very much.
  • I got an @msn email address, and it has yet to be spammed. I've had it for about 2,3 weeks or so.

    I'll check back in about 6 months and let you folks know how much that has changed. ;)

    Incidently, because of having next to no choice in ISP's where I live, I'm considering going with wal-mart starting next month. It'll be interesting to see full my 'inbox' is, how quickly it it's filled and what it's filled with.
  • by xintegerx (557455) on Sunday March 23, 2003 @03:11PM (#5579073) Homepage
    First, a year ago (march 31), a federal court ruled that suing Fax.com under this law was unconstitutional. [slashdot.org]

    Then, the FCC in August fined fax.com for doing what it was doing. [slashdot.org]

    You'd think that was a lot of money? Next, later in August, Alert newsreporter Slashdot reported that Fax.com was being sued for 2.2 TRILLION dollars [slashdot.org]

    Hillarity ensued! [slashdot.org]

    So now, Fax.com owes 5.4 million + 2.2 Trillion (actually 2.2 billion) which is still 2.2 Billion USD.

    However, since Fax.com is a business, all assets will just be seized of the business and the owners will lose nothing except the business.

    Har har!
    • by bigbigbison (104532) on Sunday March 23, 2003 @03:46PM (#5579210) Homepage
      IF I recall the details of that story, the judge that decided that fax.com could send jumk faxes did so under the reasoning that it was free speech. the judge? Limbaugh, the same one that declared that videogames WEREN"T deserving of first amendment free speach protection...
      • Judge's Info,

        Just in case anybody wants to send the judge a junk fax the info can be found at:

        http://www.moed.uscourts.gov/Judge/chambers.asp? Ju dge=Stephen%20N.%20Limbaugh

        Please note, the actual link does not have a space between the u and d in the second instance of the word judge. The space shows up in the preview window but definitely is not in the Mozilla dialog for posting. Anybody know how to get rid of it?

        • You can get rid of it by enabling HTML and putting the URL in an "a href" tag, like this:

          <a href="http://www.moed.uscourts.gov/Judge/chambers. asp?Judge=Stephen%20N.%20Limbaugh">http://www.moed .uscourts.gov/Judge/chambers.asp?Judge=Stephen%20N .%20Limbaugh</a>

  • by PetoskeyGuy (648788) on Sunday March 23, 2003 @03:14PM (#5579086)
    Faxes Cost more then email, ink, paper, wear-n-tear and people can't recieve faxes while one is incoming. I hope this can be applied to spam, but the costs are much lower, and email can be downloaded much faster. Email servers can handle lots of incoming mail at the same time.

    Still it sets a good precedent that could be very useful in the future.
    • by Anonymous Coward
      But at the same time, there is a lot more email spam than there is fax spam.
    • by stretch0611 (603238) on Sunday March 23, 2003 @04:12PM (#5579297) Journal
      Faxes Cost more then email, ink, paper, wear-n-tear and people can't recieve faxes while one is incoming. I hope this can be applied to spam, but the costs are much lower, and email can be downloaded much faster.

      Actually, when my mail client downloads mail it does it one at a time(admittedly it is a lot faster than a fax). It is not unusual to get up to 50 spam messages a day and assuming 10K each that is 1/2MB. If you can't get Cable or DSL that can take a few minutes, and I pitty the person on dial-up that goes on vacation only to come home and download Spam for a half-hour.

    • by Anonymous Coward
      The burden however small it is is placed on me. Even if it costed me only 1 cent, this is one cent I would have to pay for something I did not ask to begin with. Plus those "cent" would cumulate with the sheer mass of spam.

      In all other case of advertising, the cost are shifted on the sender. With spam it isn't. And as such, this is the same burden as fax law. You cannot/should not make the receiver pay for the burden of your own advertising.
  • by telemonster (605238) on Sunday March 23, 2003 @03:15PM (#5579088) Homepage
    I always wanted to use the 800 number on junk faxes, and setup a computer with a simple script that would sequentially "unsubscribe" every phone number in my exchange from their database.
  • by Theolojin (102108) on Sunday March 23, 2003 @03:16PM (#5579092) Homepage
    between unsolicited email and unsolicited facsimiles. unsolicited email (spam) may cost the recipient *indirectly* in rather intangible ways (i.e., used bandwidth) that are very difficult to calculate. unsolicited facsimiles, however, cost the recipient in very tangible ways: paper & toner. i do not allow a store to print advertisements from my printer so why should i have to allow a store/business to print advertisements from my fax machine?
    • by cyberlemoor (624985) on Sunday March 23, 2003 @03:32PM (#5579170)
      Sure, an email doesn't usually cost a lot to receive. But tens or even hundreds of emails a day, multiplied for instance by many employees in a business can add up to serious increases in a lot of costs.

      And not just bandwidth costs. How about billing costs? You're a $300/hr consultant who has to spend half an hour a day sorting through your email trying to figure out what's spam and what's not. That's not an "intangible" cost. That's $750 a week. Sure you could find better ways to block it or sort it more efficiently or whatever, but that's another thing imposed on you by those sending the emails.

      When such a large percentage of email is sent every day, I don't believe you can say the monetary cost is insignificant.
      • Whoops...my last sentence should read, "When such a large percentage of email sent every day is spam, I don't believe you can say the monetary cost is insignificant."
      • > When such a large percentage of email is sent every day, I don't believe you can say the monetary cost is insignificant.

        if you will re-read my post, you will notice i did not state the monetary cost of spam is insignificant. i stated the costs of spam is intangible and difficult to calculate.
        • You're right. I didn't mean to imply that the comment was directed specifically at you, but more at people in general, many of whom seem to dismiss the costs of spam. My main disagreement with your post was the statement that the cost is intangible. It is definitely there, and as tangible as wasted paper and ink, even if you have to think about it a little to discover its sources.
          • > You're right. I didn't mean to imply that the comment was directed specifically at you, but more at people in general, many of whom seem to dismiss the costs of spam. My main disagreement with your post was the statement that the cost is intangible. It is definitely there, and as tangible as wasted paper and ink, even if you have to think about it a little to discover its sources.

            spam definitely costs money to the recipient. in most cases, however, the bandwidth the spam uses cannot be calculated. f
            • But as I pointed out in my post, there are other costs besides bandwidth. I believe time to be a major one. And that is easily calculated. Ask an employee how much time is wasted reading, trashing, filtering, or finding out how to filter spam mail. Multiply by hourly wage, and you know right away how much money is lost there. Also, very large companies may pay a significant amount of money to consultants, a major function of whom may be to attempt to reduce spam. Again, an easily measurable monetary value t
    • Well, the judgement says that "unsolicited fax advertising ... burdens the computer networks of those recipients who route incoming faxes into their electronic mail systems" as part of accepting that junk faxes do cause a cost to the recipent, so it seems to me that it could apply to (email) spam just as easily.
  • by tulare (244053) on Sunday March 23, 2003 @03:18PM (#5579104) Journal
    The first thing I (and many others - this is hardly original thought) think of is cost-shifting from advertisers to customers/consumers. Where a TV spot is clear-cut - the advertiser pays money to the station/network to buy a spot, and all the consumer "loses" out of the bargain is thirty seconds of "Who Wants to Marry This Guy For His Money," when it's a blasted fax, the person on the other end, who did nothing to deserve this, now has their fax machine tied up for several minutes; they have to pay for paper, toner, and disposal of the junk, which often enough has no relevance to their business.

    With spam, more of the burden falls on the ISPs: bandwidth costs money, and a spam broadcast promising bigger penises directed at fifteen thousand randomname@domain.com chews hell out of bandwidth. I"ve seen this firsthand, and it isn't pretty. Then there's the issue of tech resources being diverted to deal with the problem: buying software to block spam, dealing with irritated customers who either got the spam or had an email falsely flagged, tracking down spammers, etc.

    The first amendment is limited in the US - you can't yell out "fire" in a crowded theater, and you can't block the entrance to a business in protest of a policy. I'd posit that spam is very similar to the latter case, only the argument is even weaker in that a protester is at least making a moral point, while the spammer is only trying to make a fast buck.

    What I'd really like to see is some way to prosecute people who use open mail relays to broadcast spam. Many of these people operate from within the US with impunity. I fail to see the difference between what they are doing and cracking, forgery, and DOS attacks.
    • Advertisers are providing a service by cutting into "Who Wants to Marry This Guy For His Money."

      Seriously, when companies advertise by buying air time, they're generally benefitting the viewers-that content would not exist were it not for its commercial viability. Sure, they give you "Who Wants to Marry This Guy For His Money," but they also give you everything you like (besides all that great stuff on Public TV), and someone out there must watch that other crap.

      Fax spam is a different story. If ther

  • by Snowspinner (627098) <philsand AT ufl DOT edu> on Sunday March 23, 2003 @03:22PM (#5579115) Homepage
    There's no law against sending unsolicited postal mail, so far as I know. Why should there be against faxes and e-mails?

    The only argument I can think of is that faxes and e-mails are transmitted at a loss to the carrier or recipient. E-mails take up bandwidth that the sender doesn't pay for. Faxes take up ink and paper, and also tie up the phone line and thus choke out signal in favor of noise.

    The fax problem is pretty insurmountable, so this is probably a good law. But I wonder about the e-mail. How long before Yahoo or Microsoft decide, in light of the anti-spam laws, to open their pipelines to spam companies for a cost. i.e. you may spam to Yahoo addresses for $500 a mailing, or whatever. Especially since consumers can opt out?

    In the end, that would be both a good and a bad thing, I suspect. On the bad side, it would pretty much permanantly entrench spam into the culture. But I suspect that's already happened. The good side would be that it would, assuming anyone ever figures out a way to enforce the laws, crack down on Nigerian money scandals, and at least promote spam offered by quasi-reputable companies.
    • by jmauro (32523) on Sunday March 23, 2003 @03:36PM (#5579181)
      There's no law against sending unsolicited postal mail, so far as I know. Why should there be against faxes and e-mails?

      In the case of postal mail, the sender pays. If a company wants to waste their money sending stuff that's their business. In the case of Faxes and Email, the receiver pays. It means those sending the information don't pay but waste the money of people receiving the stuff. The economic difference is why an email box is full of spam, but your postal box may only get 3 to 4 items a week.
    • by shepd (155729)
      >There's no law against sending unsolicited postal mail, so far as I know.

      There is [usps.com], but it's opt-out.

      Enjoy! Don't forget to send it to Wal-Mart for their bra advertisements!
    • Sending unsolicitied advertising via postal mail is illegal in a number of European countries, most noticeably Germany. The law is not limited to postal mail though: no business without a business relationship to you may directly contact you against your will. In any buiness transaction, the customer has to do the first step (have the intent of having a business transaction). It's part of the German Personality Rights (which, for example, also make it a civil offense to insult someone).
    • Why should there be against faxes and e-mails?

      How 'bout

      They shit me to tears, waste my time, offend my senses, frustrate me, annoy me, ittitate me, a hundred other adjectives that describe unpleasantness.

      I don't care if there is no rational economic reason why it should be allowed, I don't want it.

      I don't care about the spammers freedom of speech or the implications of banning spam. I don't want it.

      I don't want to discuss definitions of spam. I know it when I see it.

      I don't care if millions of legit

    • How long before Yahoo or Microsoft decide, in light of the anti-spam laws, to open their pipelines to spam companies for a cost. i.e. you may spam to Yahoo addresses for $500 a mailing, or whatever.

      Shortly before Yahoo or Microsoft find that customers are deserting them in droves. People *will* change providers over the issue of getting too much spam, and if it's known the provider has a profit motive, and therefore no motive to stop the spam, people will leaves in droves.

      "But we'll let them opt out!", y

    • Postal junk mail is like television--the advertizers support the system. In the case of postal mail, the sender pays $.30 and the effiency-of-volume of mail allows the rest of us to send mail for $.37 really a good deal for door-to-door service daily! Unless someone wants to start charging for spam, then there's no reason for us to accept it--it's a leech. I think general accounts should start being limited--what percent of users has need of more than 25 emails a day? If the whole system was designed to
  • It's pretty sad when corporations fight for their 'right' to send people crap they don't want, and expect us to pay for the paper they're using up.

    It'd be especially bad if you've got you computer and fax on the same line, and you get booted offline in the middle of a big download to get some junk fax. There's plenty of other ways for companys to spew their junk out that are slightly less annoying.

  • by tm2b (42473) on Sunday March 23, 2003 @03:30PM (#5579157) Journal
    The court considered two ways in which faxes hurt the recipients:

    • They cost the recipient substantial resources ($100/year)
    • They deny the recipient use of their own equipment

    Spammers could argue that neither of these apply to spam. The first is an issue because 80% of faxes automatically print, consuming paper and and ink. The argument having to do email is much more nebulous, requiring the court to consider the time consumed in deleting faxes as a resource. While it might be a reasonable argument to make, it's tricky when considered against a first amendment argument.

    The second point is even harder to make against spam. While a fax machine is completely consumed while receiving a fax, a computer can do other things while receiving spam. The strongest argument that could be made is that the bandwidth of a dialup modem is consumed by the spam, which is still a weaker argument than is presented for fax machines.

    So while both of the points are certainly arguable, it's not as easy an argument as it is with faxes. I do believe that antispam legislation is constitutional, I'm not sure that this particular decision does much to further that cause.
    • I don't think it is as clear cut as that.

      eg. if the receiving fax machine is a computer, or has electronic store capability, then

      - print cost is at the receiver's discretion
      - connect charge is (almost always) totally paid by the sender
      - there is a denial of service on the receiver's line

      In the spam case:

      - print cost is at the receiver's discretion
      - typically no per-message (or at least, per-recipient) connect charge is paid by the sender
      - connect charge is typically paid by the receiver, and may be expe
      • A number of ISPs seem to be introducing download quotas, placing a per-MB charge on [A]DSL connections. Thus, spam will end up costing those folks.
      • Yes, it can be so argued. However, the reason I say that it'll be more difficult to make that argument is that there are hard statistics for fax machines. Paper and toner are concrete, it's easy to put a value on them - the court quoted estimates that fax owners spend roughly $100/year printing junk faxes.

        While in theory both fax messages and email messages are printed only at the discretion of the recipients, the fact is that 80% of all faxes received are automatically printed - read the court's opini
    • The court considered two ways in which faxes hurt the recipients:

      They cost the recipient substantial resources ($100/year)
      They deny the recipient use of their own equipment

      Spammers could argue that neither of these apply to spam.

      Spam is a denial of service attack when it fills up your inbox before you can empty it and prevents you from receiving wanted messages. That alone should be more then enough.

  • Limiting spam... (Score:3, Interesting)

    by Midnight Thunder (17205) on Sunday March 23, 2003 @03:46PM (#5579211) Homepage Journal
    I hope the same logic is applied to spam.

    The problem here is that even if a law is passed how do you track down the people responsible. Given that headers are usually forged and the open relays are likely to stay open then this is going to be diffilcult. You could change SMTP so that everyone is tracked from end to end, but this brings up privacy issues.

    Since most spam makes reference to a phone number or website then the people selling the product should be held accountable. Its not a perfect solution either, but it is the best thing I can think of. What should the punishment be? Not sure, though how about a fine, equivalent to the costs of bandwidth usage, in the same manner the MPAA calculates the 'loss' of sales.
    • I don't think that's very good at all. Were that so, I'd imagine that you'd see /.ers sending out tons of spam on behalf of the MPAA/RIAA in an effort to stick them with the bill.

      Personally, I loathe spam, but I don't see a way to get rid of it that is compatable with civil liberties. I just accept it as being a minor bother that is part and parcel of having a free society, and if some individual doesn't like it, they can always set up filters and such to get rid of it, or get their ISP to filter for them.
      • I agree with you 100%. Also, even if the US makes laws against spam, it doesn't affect email coming from other countries. Does the US reasonably to expect to prosecute citizens of other countries for sending some email? A lot of spam comes from China, and I can tell you that China doesn't give a damn about US laws :)

        Although reading spam can be time-consuming, it's fun to look it after SpamAssassin has added its tags. They're hillaroius; spams are so very predictable :)
    • The problem here is that even if a law is passed how do you track down the people responsible. Given that headers are usually forged and the open relays are likely to stay open then this is going to be diffilcult.

      So why aren't the techie people attacking the open relays and beating them into the ground? They can't be that hard to find, since the spamers find them, or attack. Send them messages that loop back into them until they are closed. By the time they've fought the loss of bandwidth and deluge of

  • by nurb432 (527695) on Sunday March 23, 2003 @03:50PM (#5579221) Homepage Journal
    Nor does it say *I* have to pay to hear you ( i.e.: resources to receive the fax.. and Spam too ).

    It only guarantees your right to say it.. nothing more..

    Funny how the retailers demand it, but if its bad press against them, they use the DMCA to squelch speech.
    • THis "no right to be heard" argument is often made but doesn't make a whole lot of sense to me. Of course free speech amounts to a right to be heard, beacause it bars certain attempts by people who don't want to hear the speech or don't want others to hear it. In either case, the person exercising free speech does it to be heard, otherwise it's like that tree falling in the forest with no one there to hear it.

      So you can't stop protestors in the street simply because you don't want to hear them or politic
      • by Anonymous Coward
        THis "no right to be heard" argument is often made but doesn't make a whole lot of sense to me.

        Oh please, you know exactly what that argument refers to. It's just saying, in as few words as possible, that if I don't want to hear you exercissing your right to free speach, I can do that. It's saying you don't have a right to force your speach on anyone, and you don't have a god given right to any forum you choose. The free speech argument is always trotted out on (private of course) bulletin boards and foru

      • by nurb432 (527695) on Sunday March 23, 2003 @06:30PM (#5579900) Homepage Journal
        First of all I did not say you can stop anyone from speaking. That WOULD be a violation.

        What I said, in more simple terms: you have a right to speak, and I have a right *not* to listen.

        The discussion specially was concerning me paying to hear you speak. ( via the resources it takes to receive electronic 'speech', its not free ) Again that is wrong. You ( a generic term here ) do not have the authority to charge me to listen to you speak. Nor do you have the right to force me to listen.

        Thus the concept that the 'right to be heard' does not exist. Nor should it. .

        As a side note, I have the constitution and bill of rights on my wall above my desk, nowhere in there does it say I have to listen to you. It only states that you have a right to speak. Nothing more, thus no right to be heard.
        • No, I understand your point, and sympathize. I don't want to expend money or effort to avoid or hear objectionable speech. The thing is that the world is messier and the First Amendment of necessity allows more imposition that a simple rule provides.

          One example might be the junk mail sent to businesses. It takes money to pay people to sort through it. Another more compelling one is a political march by an unpopular group, say people demonstrating against Jim Crow (OK, this is dated). They have a right
    • Absolutely wrong.

      The right to speak would be meaningless if people were unable to hear what was being said. Dare you propose that the framers were trying to protect a useless right? Of course not.

      Now, you may choose not to listen, but that's incumbent upon YOU.

      If you don't want spam or junk mail or junk faxes or door to door solicitors, just tell the senders not to intrude on your privacy and property.

      BUT unless you take affirmative action, it seems perfectly safe to presume that having a phone line or
  • Fax is not spam (Score:5, Interesting)

    by btempleton (149110) on Sunday March 23, 2003 @03:53PM (#5579231) Homepage
    Galling as it is, spam is not in the same class as fax so I would not expect much from this case into the world of spam. Remember, the courts are, quite rightly, loathe to put restrictions on communications. Here they said a fax costs enough to allow the government to do it. Spam costs are orders of magnitude lower, especially for any single spam. Unlike spam, a single fax can tie up your machine and make you miss a wanted fax, while for spam, only the overwhelming volume, not any one message, can be in rare cases responsible for filling a mailbox to the point it can't get mail.

    The courts have mused over this issue a bit. The first rulings on the junk fax law were done when fax paper cost quite a chunk per fax, and people wondered as the cost came down if the cost-transfer test would still apply. The courts seem pretty clear that they don't think really miniscule cost tranfers would qualify as a compelling government interest, it's a question of amount here, not kind.

    • Re:Fax is not spam (Score:2, Insightful)

      by shepd (155729)
      >Unlike spam, a single fax can tie up your machine and make you miss a wanted fax, while for spam, only the overwhelming volume, not any one message, can be in rare cases responsible for filling a mailbox to the point it can't get mail.

      Hmmm, if this [slashdot.org] is correct, most of us are paying about $10 - $20 a month to receive spam. Companies would be paying in the $100 to $200 a month range.

      That seems like enough to me.
      • Re:Fax is not spam (Score:3, Interesting)

        by btempleton (149110)
        A lot of spam can load a server and cost money, but unfortunately no single E-mail has a cost that is worthy of notice, at least in the USA. With fax you can point to a fax and say, "This fax cost me 2 cents to print, and while it was coming in, my fax line was blocked for 2 minutes."

        Unfortunately you can't do that with an e-mail. You can only say, "the ISP got a million spams and they finally had to buy more bandwidth."

        Which can't be used to make a law that bans single spams the way the junk fax law ba
        • If you run a mailbox with quotas, you can be denied the use of that resource. For that matter, if you get enough spam that all your mail processes/threads/other resources as appropriate are tied up, you're denied the use of the resource.
          • Yes, I said that, so what precisely are you trying to say? Everybody knows the nastiness spam causes, the point remains that single e-mails are at least an order or three in magnitude less expensive than faxes to receive, or send. Nobody thinks spam is not a problem to be solved, however the same legal tools are simply not available.

            Not that this matters a lot. The legal tools against junk phone calls and fax have not worked, nor have any of the approximately 25 state spam laws. Fighting hard for laws
            • I think you are wrong. While the cost of a single spam email might be much less than that of a single spam fax, the cost of a single spam fax is also relatively minimal. The junk fax law was enacted when the aggregate costs of the junk faxes was seen to be unacceptable. That point has surely been reached in the area of spam email.

              Additionally, I think that the current USA laws governing junk fax and junk phone calls have been quite effective. The amount of junk faxes that are sent is greatly decreased

              • I get lots of machine recorded calls which are outright banned. And I have sued and won money over they. But in the end almost nobody does and it's not worth doing and not effective. The national do not call list is much more effective and should start up pretty soon.

                However, at least with faxes and junk calls they are usually domestic. Spam is much more international, unfortunately, putting it outside the realm of law for any blanket solution.

                And I do tell everybody to put me on the do not call list
                • I guess "does not work" means different things to different people. The volume of junk faxes is much smaller that it would be absent the federal prohibition.

                  I too am interested in seeing how the national DNC list is going to impact this sort of thing.

                  I certainly agree with you that it is doubtfull that any similar anti-spam legislation in the USA like the anti-fax law will have even as great an effect that the anti-junk-fax law has had. However I have no concerns about the constitutionality and think

        • A lot of spam can load a server and cost money, but unfortunately no single E-mail has a cost that is worthy of notice, at least in the USA. With fax you can point to a fax and say, "This fax cost me 2 cents to print, and while it was coming in, my fax line was blocked for 2 minutes."
          Unfortunately you can't do that with an e-mail. You can only say, "the ISP got a million spams and they finally had to buy more bandwidth."
          Which can't be used to make a law that bans single spams the way the junk fax law b
  • BREAKING NEWS (Score:5, Interesting)

    by xintegerx (557455) on Sunday March 23, 2003 @04:18PM (#5579317) Homepage
    Slashdot, OR: Slashdot.org today reports that the state of Missouri has figured out a new way to raise revenue while defending its citizen's rights.

    Missouri's plan revolves around suing the spammers who trash resources of businesses with fax machines by sending commercial faxes, which Fax.com is alleged of doing.

    "This business plan of this state leads others above and beyond any other similar proposed measure to restore dot com revenue in the declining economy," a slashdot poster said.

    "Not that Missouri is a technologically important state. Heck, I don't even live there", he admitted. "However, I think it is an important lesson for other states to sue spammers as soon as possible to get as much money back as possible."

    The reason for urgency is simple -- there is only so much money that an ex.com can be ripped for before it presses the Ch. 7 button on the TV remote, pointing at itself.

    It was discovered shortly after the story broke that Fax.com had it's OWN business plan, too. We received the following from an anonymous source:

    Fax.com BUSINESS PLAN
    =======================
    1) Violate junk fax law
    2) Hope the law is invalidated when Missouri sues you; stay cool when the case goes for appeal. [slashdot.org]
    3) Keep spamming for 5 more months to show your company's confidence in winning the appeal, too.
    4) Get fined $5.4 million USD by the FCC for those 5 months of confidence and ignoring their requests [slashdot.org]
    5) Get sued by a a businessman (within the month of #4) for $2.2 Trillion USD. [slashdot.org]
    6) Learn that you lost the appeal and will probably lose every case against you. [slashdot.org]
    Fortunately, a glimpse into a brighter future of the economy and privacy is not all that this latest announcement provides.
    7) ??
    8) Profit (?)
    --

    Unconfirmed reports say that this level of discredibility and the news of losing the appeals decision has FOXNEWS, part FOX Broadcasting Company, worried.

    The AP wire reports that FOX.com is considering suing Fax.com also, but for a different reason.

    A representative speaking on the condition of anonymity told us over the phone,

    "We have always assumed that Fax.com was not a credible organization. Now, the court decision is proof that Fax.com is so untrustworthy or discredited that we fear people will confuse Fax.com with FOXNEWS.com."

    A quote from a press release, added shortly to FOX's web site after the story broke, clears up why there could be confusion.

    "It's NOT exactly because our domain names are similar that we are so upset. We just feel that this discredibility will have people confusing Fax.com with FOX.COM or FOXNEWS.COM due to the high level of discredibility that we here at the FOX BROADCASTING COMPANY NEWS DEPARTMENT strive to provide. We are seriously considering our own legal action. But it is true that we cannot have a competitor with a similar domain name trying to out do us."

    The news of the court challenge means Fax.com will probably have to go bankrupt to debt. According to a Uranus Marketing survey, Fax.com is one of the last remaining of 14 profitable dot .con companies.

    Even with the sentimental value, many readers of slashdot regarded this news as unimportant, expressing their sentiments wholeheartedly.

    "We can just wait to read this until the second or third time it's posted on slashdot, thank you very much."
    --
    Missouri's win shows that states can do a lot to improve their economy and fight spam, too. However, that's not where the story ends.

    In fact, the REAL story here is that this is slashdot's fourth article in a series of content covering Fax.com and its money woes.

    Surprisingly, no dupes have been reported and each slashdot report was a new update on the case.
    -
    CmdrTaco could not be reached for comment.
  • I think trying to get the under free speech is fine...

    But when you are using MY resources(paper for faxes, Time on my servers routing mail to recipients) for said free speech it no longer becomes FREE to me therefore a cost should be incurred ie: FINES

    Free speech is fine when you make the signs and show it to me and all it takes is my glance, but if i have to exert any effort to do anything then it no longer is Free to me

    I realize that the FREE in Free speech isnt referring to cost, but when it incurs a
  • The rule is simple (Score:4, Insightful)

    by Sebby (238625) on Sunday March 23, 2003 @04:28PM (#5579359)
    Deliver your message, but at your own cost, not mine.

  • The law in question has been upheld in other federal circuits, and not recently. Take a look at Destination Ventures v. FCC [spamlaws.com]
  • This is starting to REALLY piss me off...

    The first amendment states the GOVERNMENT cannot pass a law to shut you up. It says nothing about companies or private individuals.

    The courts should fine the spammers/faxers/et al a stupidity fee.
    • by MacAndrew (463832)
      So how about all the ads go out as a personal message from the company president? That's quite plausible for a company of one. Would that be entitled to free speech protection. Or if it's commercial content as opposed to a commercial speaker that deprives speech of protection, how about a nonprofit selling "Re-elect Bush" as a way to express its message and finance its organization? Is that political or commercial? What if they do it for profit?

      I'm not criticizing your viewpoint, rather the idea that
    • The first amendment states the GOVERNMENT cannot pass a law to shut you up.

      So the government cannot pass a law against yelling "fire!" in a crowded theater, child pornography, using a bullhorn at 2AM to express yourself, or spray painting "Bush Sucks!" onto the walls of the Jefferson Memorial?

      The First Amendment expresses a basic principle, not an absolute rule of law.
  • I'm lucky enough that my fax machine hasn't and doesn't get spammed. I could see where fax spam becomes a serious problem -- there are times where a certain fax coming through is important for me to meet a deadline for a project proposal. The last thing I would need is to be waiting urgently for a very important fax only to receive the latest rollback specials at Wall-mart. I'm not sure that this will have many implications on the legal side of the war on spam. With faxes, you can hold up a bottle of in
  • by D4C5CE (578304) on Sunday March 23, 2003 @06:50PM (#5580008)
    So the courts hold that outlawing spam is perfectly compatible with both the Commerce Clause and the First Amendment (and anyway, bulk mail is not really speech, but noise!) - now it's time to adopt something like the solution [slashdot.org] Europe enacted when it finally came to similar conclusions:

    Directive 2002/58/EC [eu.int] (excerpt)

    Unlike Europe, the U.S. of course do not even need to leave room for implementation, so with less Legalese than below, a hefty fine for spammers and punitive damages payable to the spammed can be defined right in the federal anti-spam statute. If it's balanced like the European solution (still permitting legitimate eMail within a narrowly defined business relationship, but outlawing all of the abusive practices that operate at the recipients' expense), it will easily pass constitutional muster, and help America get rid of junk mail once and for all (probably even within just a few weeks).

    (40) Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and e-mails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, Community-wide rules for businesses and users.
    (41) Within the context of an existing customer relationship, it is reasonable to allow the use of electronic contact details for the offering of similar products or services, but only by the same company that has obtained the electronic contact details in accordance with Directive 95/46/EC [i.e. the General Data Protection Directive]. When electronic contact details are obtained, the customer should be informed about their further use for direct marketing in a clear and distinct manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal.
    (42) Other forms of direct marketing that are more costly for the sender and impose no financial costs on subscribers and users, such as person-to-person voice telephony calls, may justify the maintenance of a system giving subscribers or users the possibility to indicate that they do not want to receive such calls. Nevertheless, in order not to decrease existing levels of privacy protection, Member States should be entitled to uphold national systems, only allowing such calls to subscribers and users who have given their prior consent.
    (43) To facilitate effective enforcement of Community rules on unsolicited messages for direct marketing, it is necessary to prohibit the use of false identities or false return addresses or numbers while sending unsolicited messages for direct marketing purposes.

    (47) Where the rights of the users and subscribers are not respected, national legislation should provide for judicial remedies. Penalties should be imposed on any person, whether governed by private or public law, who fails to comply with the national measures taken under this Directive.

    Article 13
    Unsolicited communications

    1. The use of automated calling systems without human intervention (automatic calling

  • by Anonymous Coward on Sunday March 23, 2003 @07:15PM (#5580095)
    Not long ago I had trouble stopping spam from one particular spammer. I finally sent them an email letting them know I would begin charging them $500.00 for every piece of spam I received from them, and included the statement below. Haven't seen a thing from them since. I borrowed this strategy from a page at www.snark.com

    United States Code Title 47, Section 227(a)(2)(B) states that a computer, modem, and/or printer meets the definition of a telephone fax machine. Section 227(b)(1)(C) states that it is unlawful to send any unsolicited advertisement to such equipment. Section 227(b)(3)(C) states that a violation of the aforementioned Section is punishable by action to recover actual monetary loss, or $500, whichever is greater, for each violation.
  • by Montezuma58 (577906) <.montezuma58. .at. .bellsouth.net.> on Sunday March 23, 2003 @08:23PM (#5580367)
    Junk faxes con not only waste resources with fax machines they can also waste your cellular air time and clog up your voice mail. I got several fax messages in my voice mail before. My phone only lets me know if I have messages. I don't know whether they are fax or voice until I call in to check. I had the message system send the messages to a fax machine and was able to get them stopped based on the info on the fax. Very infurating.

    Also the First Amendment argument used by the business is weak. The First Amendment give you the right to say what you want. It does not grant you the right to force someone to listen to you nor does it obligate me to offer any support to you in exercising your free speech. These junk faxes force you to listen to their message. They can't be ignored as easily as the talking head on TV with whom you disagree. And they sure as hell require the recipient to assist the sender. My freedom to listen is also implicit in the first amendment. If I don't have the option to choose to listen to or ignore your speech your speech isn't free.
  • Companies are not people and are not entitled to the same protection of free speech under the bill of rights. Now if only the courts could figure that out, all this garbage would fall out like dominos.

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