Opt-In Junk Fax Law Survives Court Challenge 131
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.
Has anyone actually tried to collect? (Score:5, Interesting)
not as hard to opt-out (Score:5, Interesting)
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.
Reminds me of all the fax.com stories (Score:5, Interesting)
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!
Re:not as hard to opt-out (Score:5, Interesting)
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.
Fax-Unsubscribe-Blasting? (Score:5, Interesting)
there is a big difference... (Score:3, Interesting)
Basis of this whole spam/fax issue (Score:5, Interesting)
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.
Spam will never die =/ (Score:5, Interesting)
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.
Re:IBM should patent Spam. (Score:5, Interesting)
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.
Same reasoning might not apply to Spam (Score:5, Interesting)
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.
Re:It's constitutional to limit spam (Score:5, Interesting)
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.
Re:Reminds me of all the fax.com stories (Score:5, Interesting)
Limiting spam... (Score:3, Interesting)
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.
Fax is not spam (Score:5, Interesting)
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:Interesting Argument (Score:4, Interesting)
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.
BREAKING NEWS (Score:5, Interesting)
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
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've gotten $1800 in 9 months due to TCPA (Score:5, Interesting)
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.
Re:Fax is not spam (Score:3, Interesting)
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 bans single junk faxes.
Not that it works, of course. I have done lawsuits under the TCPA, the law that includes the junk fax provision. It is not productive. I have won money, but it takes more of your time per victory than it is worth.
Re:Same reasoning might not apply to Spam (Score:2, Interesting)
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 expensive per-minute or per-byte
- there is a denial of service on the receiver's connection
So that actually looks like spam costs the receiver more (and the sender less) than fax.
It could be argued that fixed-cost connections are increasing so connection costs shouldn't be considered, but equally mobile internet usage is increasing and connection costs then are not fixed and typically not cheap either.
If we get to the point where most mobiles have email capability, shouldn't email be treated the same as SMS ?
[ I'm not sure what controls there are on SMS spam in the US but I am pretty sure there are controls elsewhere ]
If it cost more than zero then it cost enough, (Score:2, Interesting)
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.
My cell phone got junk faxed. (Score:3, Interesting)
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.
Re:Has anyone actually tried to collect? (Score:2, Interesting)