CA Appeals Court Upholds Spam Law 339
Joe Wagner writes: "Criminal penalties for spam, yeah baby! It has just been announced that California State's spam law has been ruled constitutional and valid by California Court of Appeal for the First District: '...we hold that section 17538.4 does not violate the dormant Commerce Clause [of the United States Constitution].' The actual ruling is here. Congratulations to Mark Ferguson and his lawyers (1, 2) for fighting it out for the rest of us..."
Brilliant, now... (Score:5, Interesting)
Is there actually a "spam lobby" anywhere that could prevent (read give money to) politicans from supporting or passing such bills in other states?
Re:Brilliant, now... (Score:5, Informative)
Yup. The DMA [the-dma.org]. They want to spam you.
Re:Brilliant, now... (Score:3)
(Am I spelling "politicians" right? I don't think so...)
Re:Brilliant, now... (Score:3)
Actually, there is. Perhaps the most well know is the Direct Marketing Association [the-dma.org]. Yeah, they've got money, and yeah, they slather it around in D.C. They're not a spam lobby per se, but that is definitely a area in which they're active.
Re:Brilliant, now... (Score:5, Informative)
I think I'll mail EFF now.
Re:Brilliant, now... (Score:3)
Which is to say, that it doesn't matter whether the CA anti-spam law is constitutional or not, it's unenforceable, and therefore, worthless.
I'd rather have no anti-spam law, than a toothless one.
Speaking of laws, when the fsck is the DA in Dallas, TX, gonna do something about a certain spammer who has an affinity for AT&T dialup ISPs and beast pr0n?
Re:Brilliant, now... (Score:4, Informative)
But you still have to file, and see the case through to the end. And then collect. Simply put, legal action is difficult. But each and every one of you can do it.
I love this definition of SPAM: (Score:5, Interesting)
Perhaps not plain english, but as close as legalese gets.
YES!!!
Re:I love this definition of SPAM: (Score:2, Insightful)
Also, No comment by the EFF yet, I'm really interested in what they think of this definition of spam can be used inapporitly to negate free speech.
Re:I love this definition of SPAM: (Score:2)
Then you'll be like a French person trying to buy Nazi gear via Yahoo auctions. The law is only valid in California, and AFAIK, other states/countries have no obligation to uphold it.
Re:I love this definition of SPAM: (Score:3, Informative)
The law applies to anyone doing business in California, whether or not they are located in California. If you ship a product to a customer in California, for example, you are doing business in California and are subject to California law.
PROSECUTE SPAMMERS NOW ! ! ! ! ! ! ! (Score:3, Funny)
Goody! (Score:4, Funny)
(IANAL) When do I get my cut of the Civil Suit?
Obviously SOMEBODY is making $4000 every week while they sleep with Barely Legal Lolitas and loose weight.
Re:Goody! (Score:2)
And also, this isn't gonns do anything.
all you have to do is provide a valid email to opt-out. No big deal.
only a slight improvement (Score:5, Informative)
This is great?
It also only covers spammers who have their equipment located in California. All this means is that spammers will use mailservers in some other state or country.
The only good thing I see about this is that it requires the subject to have "ADV:" in it.
I expect absolutely no change in the amount of spam I get as a result of this law.
Re:only a slight improvement (Score:2, Insightful)
Re:only a slight improvement (Score:3, Insightful)
Re:only a slight improvement (Score:4, Interesting)
Valid return address - allows you to track down someone to be held liable for the spam. This makes complaining to the upstream provider much easier - and while the spammer will probably just hop accounts for the next one, it'll at least be a thorn in their side.
Address removal - This won't really change anything -- they'll remove you from the one-time list they used to generate that particular spam, but add you to 3 other lists that will be sold or used to spam again.
ADV: in subject - This is the one that could change the user experience signifigantly, if mail server admins use it. If spam is required by law to contain ADV: in the subject, than email can be filtered server-side to cull it out. Obviously this requires a little bit of work on the server admin's part - but if done right, this could bring your spamcount to zero (assuming the spammers obey the law)
;P )
Now...most likely the spammers won't obey the law. They'll keep going as they are now, until enough of them get fined/jailed over it - then they'll have to figure a way to get around it. Most likely this will involve large "donations" to various congress members, in return for their vote against making there be any real penalty for violating the law.
So yes - you're right on the one hand that the ammount of spam that comes in may not change - but the few spammers who actually abide by this law will make themselves easy targets for good filters. (and most good filters already cull out ADV: subjects
Re:only a slight improvement (Score:3, Informative)
I can do that already far more effectively using tools like procmail [ii.com] and SpamAssassin [taint.org]. SpamAssassin in turn can use various RBLs and Vipul's Razor [sf.net] (recently mentioned here), if you choose to.
That combination has saved me from recieving and processing about 20 messages in my personal mail today alone, not to mention the other benefits of auto-filing/trashing/redirecting that using procmail gives me.
Re:only a slight improvement (Score:2)
Besides, as I said (and I think you agreed), the benefit of running procmail and/or SA is that you make the rules. It just happens that SA has quite a nice scoring system and a lively community of people developing new rules for it, and a nifty genetic algorithm-based tool for optimising the scores for each test based on a large body of sample messages.
What I actually do is filter the tagged 'spam' into a separate on-server folder which I scan through from time to time to tweak my filter rules.
Any experts? (Score:2)
How can I setup Sendmail to deny all emails where the Reply To: != From: address?
Filtering for message subjects which begin with "ADV:"
How can I verify that the sender's domain (or parent if they have a tertiary level domain such as neal@cowboy.slashdot.org) has a valid MX record?
On a side note, I don't understand the comments on who is donating to political parties in order to gain support for pro-spam policies.
From my understanding, the majority of spam is completely useless... even if I wanted to buy that timeshare in Afghanistan and use it as a base of operations to make $63,924 (first month!) sending marketing material to Al Qaeda members. There was some enterprising reporter (in LA, IIRC) that actually followed up to 200 or so spam emails trying to buy the product or the like, and 95% it was fake.
So what the hell is the point? If the spammer's time is worth nothing, they should try Linux instead. But their time is worth something and they're wasting it sending spam that they can't even make money from. Maybe they just use it to see who responds and then sell those addresses. But if that's true, and only 50% of the people respond, then eventually that list of emails gets really short... and since I can buy millions of email addresses for $39.95 I don't see how these spammers can afford to give anything to politicians.
Maybe that spammers are trying to get you to send them your credit card and then they run off on a giant shopping spree at your expense... but if that is the case then there would be even more anti-spam legislation.
Re:only a slight improvement (Score:2)
The spammer is required to place "AVD:" in the first four characters of the subject line. It also requires notice of the return address or a toll free number in the first line of the message. Even if it "only" required valid return address and true blocking of future messages, it would be a great thing.
It also only covers spammers who have their equipment located in California.
I believe it covers all email that is communicated TO a mail server within California. It doesn't seem to matter where the spammer is sending from. Did I misread it?
The only good thing I see about this is that it requires the subject to have "ADV:" in it.
I expect absolutely no change in the amount of spam I get as a result of this law.
Perhaps you are fortunate enough to be missed by all the fraudlent get-rich-quick schemes. Maybe you haven't needed to endure a beastiality porn ad every couple days? Sex enhancing pills, fradulent credit (dup'ing SS#'s), work-from-home scams, bogus vacation/free-computer offers, and so on. If you only get "legitimate spam", such as ads from companies with bonefide products, then this law won't change much for you (except that they might do a better job of really blocking future messages when you request it).
These fraudlent practices and questionable products are the real social evil that needs to be wiped out.
Sure, it might be nice to have a law the completely prohibits all spam... but it just ain't gonna happen. Being able to respond to the spammer and have them truely block all future messages is a pretty good second.
This seems like a bad thing to me... (Score:4, Insightful)
However, do we really want a precedent of banning certain types of emails? As much as we don't like spammers, I would much rather have to delete "Increase your ejactulation by 581%" than to worry that an encrypted email transmission was deemed illegal.
Re:This seems like a bad thing to me... (Score:2)
Re:This seems like a bad thing to me... (Score:2, Insightful)
Re:This seems like a bad thing to me... (Score:2)
No, this just doesn't work.
It's like calling the cops after you've been the victim of a B&E. A nice guy or gal in a spiffy uniform will come and take a report, and you'll never get your stuff back, nor will the perp be pursued.
Because the CA law lacks a right of private action, your reporting it isn't enough - the cops have to decide that it's a case worth prosecuting. Given that cops perceive (IMHO rightfully) that they have better things to do with their time than chase down every two-bit spambag, nothing will happen to spammers who break the law.
(And in the defence of the cops, how do you prove that the perp is in CA? Sure, the reverse DNS on the throwaway dialup account may match to a CA ISP, but the perp could be in Florida or Dallas or Michigan, dialing long-distance. Officer Friendly's got better things to do with his time than chase down wild geese with recalcitrant ISPs.)
Slippery Slope and Bigger fish to fry??? (Score:3, Insightful)
This would effectively give them the freedom to send as much unsolicited junk to people who want it, and let us who don't want it to filter it out.
As far as regulating technology goes, I think there's bigger fish to fry. Here's some examples of how the FCC helps the communication monopolies keep thier monopolies...
UWB technology gets stuck in red tape [usatoday.com]
Roll your own DSL [pbs.org]
My point: Communications and tech have been regulated for YEARS. So while you're pondering if criminalizing spam MAY set a bad precident, existing technology and communication monopolies are doing everything to criminalize and patent truely liberating technology (Ultra-Wide-Band) (DSL without the telcos): (That is before they figure out how to use it for thier own advantage)
...and that's just one very small facit of the problem...
Re:This seems like a bad thing to me... (Score:2)
- has a fraudulent return address
- is unsolicited commercial mail
You can still forge return addresses, you just can't do it with unsolicited commercial mail. You can still send whatever you want, just that in some cases you have to use a real return address. Does this still seem problamatic?New Spam... (Score:5, Funny)
Our law firm will go after all of these hideous capitalist marketers...
To help our cause please forward this email to all of your friends and spread the word
Also be sure to tell them to vote no on the Congressional Act adding a tax to emails...
Ham and ..... (Score:2, Insightful)
Where does the crime occur? (Score:3, Insightful)
And on behalf of some Canadians, I would love something like this to happen up hear.
Either (Score:2)
Re:Either (Score:2)
Actually, like most Internet laws (read: casinos), I believe it's just for the sender.
Does this apply to junk mail? (Score:2, Interesting)
Get off the lists then .... (Score:2, Informative)
And it does work. My junk mail has decreased dramatically.
Re:Does this apply to junk mail? (Score:2)
In other news most of the glossy inserts that you get aren't really tree paper. They are mainly made out of clay, that's right they're made out of dirt. Going into a landfill won't do a damn thing because that's where they come from. So stop worrying about it.
Re:Does this apply to junk mail? (Score:2)
By the way, junk mail can also cause "bounces". I live in an apartment complex and those mailboxes are not very big. If I did not check it 2 days in a row, it would be completely full of junk, causing the mailman to hold my mail at their facility until it is emptied.
Re:Does this apply to junk mail? (Score:2)
Oh no! He's figured it out!
Anti-spammers aren't really upset about the theft of their time and computing resources, we're all just agents of The Lumber Cartel [come.to] trying to increase the rate at which wood products are consumed!
It's about time. (Score:4, Informative)
Spammers would have you believe that other than your time for "just clicking delete", there's no cost to spam. However, since you and I and all spam victims pay a lot of the cost of spam before purchasing the spamvertised product, market forces on spam are seriously weakened, with respect to market forces on other forms of advertising (radio and Tee Vee broadcast, newspaper and magazine advertising, billboards, stock cars, product placement in movies). For all other forms of advertising, the advertiser pays for the ads up front, before the consumer buys the product. If the ad campaign sucks ("Ring Around the Collar!") or offends (Frito Bandito, anyone?) ad victims can choose to exert market forces on the advertiser. With respect to spam, victims have already paid more than their share of the ad costs before making a decision whether or not to buy the spamvertised product. Market forces apply only weakly to spam, thus requiring government intervention. Criminalizing spam is a step in the right direction.
Spammers are all thieves. Don't forget, don't let your legislator(s) forget it. Down with the DMA!
Re:It's about time. (Score:2)
...
I too will make the claim that the real cost of spam is the time it takes to delete it, not the cost of delivery.
Consider - In the US, most people pay a flat rate for internet connectivity. For them, the cost of delivery is 0. Now consider their ISP (who will after all, ultimately pass any costs of delivery on to the custom one way or another). ISPs typically get good rates on bandwidth, $1.00 per gigabyte is a good rule of thumb, but let's be generous and assume they are paying $10.00 per gig. The typical spam is under 10K, which works out to $0.0001 per spam. I receive around 30 spams a day, which is high, but still works out to less than a dime a month. I lose more money dropping coins under the soda machine.
Since someone will no doubt feel compelled to point out that not everyone gets bandwidth as cheap as they do in the US, but stop there and not actually do the math of the higher priced service, I'll point out that even if you pay 100 times as much for bandwidth, spam
Now consider what your time is worth. It takes about 5 seconds to identify and delete a piece of spam. If your time is worth $3.60 an hour, that's $0.001 per piece of spam, or over $4.00 a month. That's a lot more than the bandwidth cost, and most people with internet service consider their time a lot more valuable.
If the above math is too hard for you, just think of this: Which takes longer; your computer downloading spam, or you deleting it? And who gets paid more, you or your computer?
You might be able to convince me that you pay more for the delivery of spam than the spammer pays to deliver it to you, but I'd still delete unread any spam sent me, even if the advertiser paid me a dime to read it. I am not alone in that position, so complaining about the ratio of payment made to have spam delivered seems moot to me.
Spammers may thieves, but it isn't sending spam that made them so.
What we need is better technical solutions to spam, not more bad laws.
In A Related Story (Score:2, Interesting)
Here is the story from Yahoo [yahoo.com]
Re:In A Related Story (Score:2, Interesting)
From the site where you can sign up (www.texasnocall.com) :
ARE THERE EXCEPTIONS TO THE RULES FOR TELEMARKETERS?
Yes. Telemarketers may contact customers:
* with whom they have an established business relationship;
* if the customer requests contact;
* to collect a debt;
* on behalf of a non-profit organization or charity, or
* if the telemarketer is a state licensee (for example - insurance or real estate agent, etc.) and:
* the call is not made by an automated device;
* the solicited transaction is not completed without a face-to-face presentation to complete a sales transaction and make payment;
* the consumer has not previously told the licensee that the consumer does not wished to be called.
Oh well. It was a nice thought.
- Dave
Re:In A Related Story (Score:2)
There's an interesting twist to this exemption, and it's borderline fraud. Although some credit counselling organizations are legitimate, others are merely non-profit "fronts", or "shells" designed to herd low-income people into consolidating their debts at higher rates with unscrupulous creditors.
Thus, some scumbag credit card company can "legitimately" telemarket by having its "charitable" arm phone people up and say "We're here to help you lower your debt servicing costs. We're a non-profit credit counselling service." Of course, all their counsellors recommend the same credit card, but the mark^H^H^H^Hcustomer doesn't know that.
Still, even a limited do-not-call law is better than none at all.
(Unlike spam, where lawbreaking is encouraged by the negligible cost to the sender, telemarketers at least have some incentive not to call those of us who wish to eat our supper in peace.)
Re:In A Related Story (Score:2)
Screw that. I've been telling every single telemarketer who calls to put me on their do not call list. That has worked much better than anything else I could have done. I rarely get calls anymore.
Opt-in laws to be free of SPAM (Score:3)
Maybe it's the first step to adding your e-mail to a "no spam" list. If they're doing it with etlemarketers, why NOT with mass e-mailers?
Re:Opt-in laws to be free of SPAM (Score:2)
I havn't had a junk phone call since the law went into effect. It's been great. I don't have to screen phone calls anymore.
Re:Opt-in laws to be free of SPAM (Score:2)
They quickly stopped that practice. They had to - they were an easy target for people upset at this perceived misused of the list.
But do you really think that anyone making criminal solications will give a damn about what people will say after they misuse a central list of valid email addresses? Even if the list is covered by a law that provides an automatic $500 judgement, good luck collecting it. You don't think they're going to start sending spam from *their* accounts, do you?
Re:Opt-in laws to be free of SPAM (Score:2)
Just because it's hard to enforce doesn't mean that we shouldn't make the law.
Even better -- to whom it applies: (Score:2, Informative)
Note that it also says, right up front
(emphasis mine). Not just companies registered in California, nor does the email have to originate or be transferred through, or delivered in Calfiornia -- if the company does any business at all in California, it applies.
I like it!
Great. But now what? (Score:2, Informative)
What's being done to STOP spam? I for one am tired of sorting through my mail looking for valid messages (spam to real mail ration of about 100 to 1). What's more as the years go on (same mail box for five years) my spam gets stranger and stranger [penny-arcade.com] I get more messages in Japanese, Korean, German, Russian and Taiwanese then I do in English.
fresh in my mailbox... (Score:5, Funny)
$$ MAKE $$$$$ PROSECUTING SPAMMERS!!! $$
Very similar to the WA state spam law (Score:2)
Spam prevention for the entire domain! (Score:3, Interesting)
What are the odds of getting someone big to do this, like Hotmail or AOL? Then we'll really see how against spam the big companies are.
Now for the next step . . . (Score:2)
I dont know how this would mod, maybe i need help (Score:3, Interesting)
Anyways we're going down to his house in bakersfield next week. Apparently his father has a T1 line going into a csu/dsu into a router on a pretty unsecured network into his house. All windows machines running IIS, can't remember the spam package he's using but here is the dilema I face, maybe my fellow
Up until last year I was a happily working dot com guy. Every company needed sysadmins so for a guy like me that understood tcp/ip networking and o/s installation it was great. Jobs were everywhere. Then I got laid off a week after buying my house. Been surviving, still got the house, but you just don't derive as much pleasure from life living day to day on ramen and cigarettes your bought scraping the change that fell out of people pockets from your couch.
His father wants our help. He know's I can help him convert everything over to BSD, which in itself would secure him a bit, get a firewall in place and a billing system. Currently he is making $2,500 a week net and has customers lined up out the door to use his spamming services.
My moral dilema is, do I help the guy to make a quick buck (which also makes the wife happy) or do I stick to my guns and say spam is wrong?
It's a really hard choice to make when you're faced with the reality of well.. reality. Bills don't pay themselves. I sometimes wonder if the goverment is lying about how bad it really is out here because I got 5 sysadmin friends in the bay area out of work now. 5 sysadmins that I personally know and hang out with. Their job hunts have been the same as mine for the last year, HR ppl just bringing you in for an interview so its "make busy" work.
I dunno, today might just be a weird day, its an odd coincidence that slash would be posting a story on this a week before i'm supposed to go help it.
No answeres here (Score:2)
Sorry, man, but you're the only person who can make that call.
Re:I dont know how this would mod, maybe i need he (Score:2)
Re:I dont know how this would mod, maybe i need he (Score:2)
There are too many spammers in Bakersfield for that reference to uniquely identify him.
But if you'd post a sample of his spam, the Lumber Cartel (TINLC) will recognize him, get his T1 yanked by his provider, and then his network of IIS boxen will be secured for free ;-)
Re:I dont know how this would mod, maybe i need he (Score:3, Insightful)
Everybody has to make a living. Everybody has to live with there own conscience. What are you asking for?
If you want someone to tell you its okay to send out spam, well try again. SPAM is wrong because you are basically syphoning off the system. This guy's dad makes a few bucks in a morally negligent way. It does create hard currency, but it won't do anything for your conscience or your resume, and chances are you will always regret working there.
If you have a conscience. Many people don't. Perhaps you are one of them. In which case, go help the spam guy. Its easy to rationalize. Hey! If not you someone else, right?
But this is a decision you need to make and no one else. Asking slashdot for advice is about as predictable as asking. "I was installing an OS on my PC, and was wondering whether I should use Windows or FreeBSD. What do you think?"
Anyway, good luck, and please take me off any lists you might come in contact with.
Say No. Additonally, Report Him to his ISP. (Score:3, Insightful)
Although I fully sympathize with your plight, being in the middle of the same thing myself, the long-term consequences are far more dire.
Taking the job is a black mark that will follow you for the rest of your professional life. No one that you'd actually want to work for will knowingly hire a spammer. Your employment options will be forever limited to spammers and spam-friendly organizations. You will also not be able to reveal the nature of your employment to your friends, for fear of their reaction.
If you simply fail to mention that piece of your employment history on future resumes, you'll still have a curious gap that future employers will ask about.
A quick trip through mythological or Biblical references will show you this is how Evil traditionally works: Wait for a moment of supreme weakness, then make the victim an Offer He Can't Refuse.
Ultimately, as an earlier poster pointed out, you are the final arbiter of your own ethics and what you think you can live with. But if you want my opinion, I recommend avoiding the Faustian Bargain. The long-term costs to your professional career are simply too high.
Schwab
Re:I dont know how this would mod, maybe i need he (Score:2)
Just try to perform it as "morally correct" as your conscience demands. That means if you discover an anti-spamming law that you can comply with by changing some code, change that code. If you know that the DMA maintains a list of addresses that have requested "No spam, please," then try to keep that list current on your systems. Just because your boss is "ethically challenged" doesn't mean you have to always do it his way. (Just when he's looking over your shoulder ;-)
Hell, who knows, you might eventually drive his company in a more legitimate direction, which might even prove to be more profitable in the long run. Y'know, you could even then legitimately advertise your services as "ANTI-SPAM S.xxxx compliant"
Just do the rest of the hacker world a favor and make his spam-slinging engine leave some spammy header traces that our spam filters can spot, please! Spam plays the numbers game, and if 5% of us are savvy enough to filter it out, SO WHAT? It doesn't cost you any business you would have otherwise tricked us into giving you.
Hell, it'll even save you time NOT sending it to the spam-hating addresses. It might even keep the rabid anti-spam crowd from chasing your IP address back a day early, letting you operate a bit longer each time.
John
Re:I dont know how this would mod, maybe i need he (Score:2)
But it's a pro-spam law (Score:4, Insightful)
Duh.
So now the spammers will have a list of valid, guaranteed active email accounts. To sell, which is what opt-out addresses in spam are for. Not to opt out, but to verify that they're real.
And since this is a state law, the spammer can get away with this by being out of state. Not that spammers ever care about the law. The law merely encourages users to ACT LIKE IDIOTS and send real email addresses to spammers who will then use them as verified, premium spambait!
What you can do (Score:2)
That's what I do.
I believe that, sooner or later, we will get a really tough law against spammers, especially if you do this at the pr0n sites.
Double edged sword (Score:2, Informative)
Clearly, requiring spammers to behave with some sort of ethics is a noble goal. However, it appears that the judge has decided that this law does not violate the constitution for the wrong reasons. So, as much as it pains me, I must disagree with the judge. The law needs to be rewritten to be more restrictive. My logic follows below.
I read through the judges decision, and here are some interesting snippets which show the judge does not understand the nature of the internet, and the defendant clearly did not present sufficient argument in several areas.
That implies that (1) the geographic location of the electronic mail server can be determined by the sender of the mail, (2) that the servers which will be passed through (or at least are at the origin or destination) are known to the sender, and (3) that the residency of the recipient is known to the sender.
Which implies, again, that the residency of the recipient is known or can be inferred. Both the Attorney General and Ferguson apparently don't know how the assembly of e-mail address lists occurs. When compiling a list of addresses who might be interested in a particular subject, address assesment almost never occurs.
If I were to decide to assemble a list of addresses that might be interested in my product, I could go to a newsgroup, download all the headers available, and compile the attached e-mail addresses into a list. However, that list of e-mail addresses has no other information embedded within it. Any of the e-mail addresses listed may be hosted with a server having a privacy policy which prevents disclosure of the end user's address. Therefore, I have no way of determining what the residency of those recipients is.
Here lies the most important part of the argument, conflicting state laws. The entire basis of the court's rejection of the unconstitutionality hinges on the assumption that the residency of a UCE recipient can be determined. If it is impossible to determine the residency of a UCE, the law becomes unconstitutional.
How many free e-mail services do not require an indication of a user's residency? How many of those servers that do require it verify identity? For an entire segment of the population, it is completely impossible to determine the residency of the users, thus, this law should be found unconstitutional.
Re:Double edged sword (Score:2)
If telemarketing follows similar laws about opt-out (ie, if you ask them to take your number of the list, they have to), why shouldn't email spam? The judge and DA may be flawed in their logic, but that doesn't automatically make the decision useless or unconstitutional.
Re:Double edged sword (Score:2)
With this precedent, you now have to figure out where you are mailing. Not just if you are mailing to a mailbox in California, but every time. If a person in Nevada mails a person whose mailbox location they don't know, and the person has to be in Oregon, this ruling says you need to find out where it is to make sure it's not in California.
In effect, they are banning sending mail when you don't know what state the target mailbox is in. You may be able to find out the state with a bit of whois work or searching lists, but California is not supposed to have the power to make you take these extra steps if it turns out the mail is not going to come to California.
In other words, California is making people from Nevada take extra steps on mail that turns out to be going to Oregon. That is unconstitutional.
Re:Double edged sword (Score:2)
<P>
And indeed this was fought over web sites, when states tried to regulate web sites on the theory that if a web site is serving pages to a user in New York, it had better follow the law of New York. But web sites don't know where they are serving pages to normally, and it would be much work for them to check.
<P>
Likewise it was fought over France's claim that since Yahoo auctions could be bid on from France, Yahoo could not sell things that violated French law.
<P>
So while you might love it banning spam, this ruling is saying that everybody has to know every law from all 50 states, and comply with all of them if sending an e-mail to an unknown destination.
a small help (Score:2)
I mean, US spam, I at least can read.
We want our Spam can logo back! (Score:5, Insightful)
Hormel Food Corporation, which debuted its Spam(R) luncheon meat in 1937, has dropped any defensiveness about this use of the term and now celebrates its product with a website . . . . [Citations.]" (Heckel, supra, 24 P.3d at p. 406, fn. 1.)
Does that mean /. can use the old Spam logo again?
(only partially kidding...)
Re:We want our Spam can logo back! (Score:2)
Definately not [spam.com]. Seriously, you should read that page to appreciate how reasonable and understand Hormel has been.
Legislate us! (Score:2)
DMCA is bad. Yes. I agree. Threatening lawsuits against ORBS is bad. Right with you there, the internet functions well as a self-governing system. Also, don't tax transactions on the internet, okay, no problem. But if it involves an annoyance such as spam, please, bring in your law enforcement.
As a sysadmin, I hate spam plenty. As a sysadmin, I employ various mechanisms to employ spam. I don't consider this legislation to be any great cause of celebration.
Re:Legislate us! (Score:2)
A bad decision on a bad law (Score:5, Insightful)
The court has said that when you mail, you have a duty to figure out in advance what state the mailbox you're mailing to is in, and then find out the e-mail laws of that state and obey them.
Yikes! That's not at all the way E-mail works. You often have no idea what state the other guy's mailbox is in, and it's a pain, or impossible, to find out in many cases.
You may cheer that this law puts this burden on senders of UCE, but the reality is that if this decision stands, you are letting all states put whatever rules they care to pass on E-mail, and putting a duty on everybody to know all the laws and know the state they are mailing.
To add insult to injury, this law defines new syntax for the Subject header! The government should not be defining the forms of e-mail headers. The IETF does that. This is also compelled speech and apparently the defendant didn't even bring that issue up.
Less you think I'm defending spam, you can read my essay on the insidious evil of spam [templetons.com] to find out the contrary.
But we must fight spam the right way, and setting precedents like this is a dark day for e-mail and the internet in general.
California had another spam law which wasn't so bad because the recipient had to notify, thus making it clear what state they were in.
YES, THANK YOU! (Score:2)
Listen slashdot! You don't want the government's hand in this!
Remeber how they "solved" the pornography problem? (CDA I, II, etc., forced use of censorware in libraries)
Remember how they "solved" the movie piracy problem? (DMCA?)
I want as little regulation of what I do on the internet as possible. I think the spam problem is best solved by (1) hitting delete, (2) technological/social solutions, or finally (3) civil torts.
Re:A bad decision on a bad law (Score:2)
Re:A bad decision on a bad law (Score:2)
Re:A bad decision on a bad law (Score:2)
And a capable lawyer brings up everything that might have a bearing, even if they don't think it has a chance. It's the judge's job to dismiss it.
The question of whether the government can force us to classify our speech is an interesting but unsettled one.
However, it still remains the case that we don't want the government defining the syntax of email headers. If you want a law for that, the law should say, "Appropriate standards bodies for the E-mail being sent may define headers which allow the expression of whether the mail is commercial or not, and if they do, commercial mailers must use them."
However, the surpreme court has thrown out regulation of commercial speech "just because it is commercial." As we all know, there is religious spam, charitable spam, politicial spam and various other types. If there is to be a law about spam, court ruling suggest it needs to be about spam, not about commerce, which is simply the most popular type of spam.
Re:A bad decision on a bad law (Score:2)
In case you haven't noticed, these spammers are:
- Engaging in interstate commerce (even if it's black-market stuff)
- Often selling physical goods (or claiming to, anyway) which have to be delivered
which means they have to be aware of and follow laws on interstate commerce anyway. I don't see a big difference here.This is also compelled speech and apparently the defendant didn't even bring that issue up.
I'm not surprised at all - how could they have argued it? We will be irreparably harmed by people choosing not to read our adverts by using filters? WTF?? Which would be a big fat admission that almost everyone hates spam. That's not something they're going to argue unless they're really stupid or desperate.
Re:A bad decision on a bad law (Score:2)
New Mexico for example, passed a "decency" law like the CDA. This ruling, if upheld in the surprme court, would make everybody at risk for New Mexico's law and force them to check that their mail is not going to NM if it violates the decency standards of NM.
Some people's minds are clouded because this law regulates spammers and nobody likes spammers. Look past that, and see the precedent it sets about states laying any other sort of regulation they happen to like on you. You like the spam-stomping, but you won't like the next one.
Re:A bad decision on a bad law (Score:2)
Don't forget the part where the statue can only be upheld...
Re:A bad decision on a bad law (Score:2)
I've even sued people who use these devices in court and won the $500 judgement, and gotten settlements in each case. However, in most of the cases you can't find the party without a lot of work, and when you can, it's more than $500 of work to get the case done.
When I have gone to court, the small claims judges have been highly surprised, and have never seen such cases before. Ie. nobody else is enforcing the law and the abuse continues.
We have 18 spam laws now in states and spam is up, up, up.
So I agree with the point you didn't know you made -- because the laws are ineffectual, they should not be allowed to affect people outside the state at all.
However, note that in this case we're talking about the interstate commerce coming into California.
My understanding is California has absolutely zero power to pass laws that affect commerce between Nevada and Oregon. Such laws will not be struck down by the California court, but by the federal one.
Slippery slope (Score:2)
What we end up with as a net result (pardon the pun) is that there is a law on the books restricting speech on the net; if this law survives further appeals, it becomes precedent for further laws restricting net speech. Personally, I would rather deal with spam and keep the regulators as far from the net as possible.
who pays (Score:2)
Think if the paper-spammers started putting "postage will be paid by adressee" on their ads.
tread carefully (Score:3, Insightful)
And surprisingly, the way the law defines spam is how most of us would want it defined.
Please be very carefull when contacting politicians about spam laws that you states/country defines it they way California does, otherwise it could be twisted pretty badly.
Its a tough thing, for me spam is an ad for business. But I would hate a law to stiffle free speech.
Re:tread carefully (Score:2)
This law has teeth, too. There are criminal provisions. Probably about the time the third spammer goes to jail, the total volume of spam will drop considerably.
It may have been noticed already. I haven't received a spam in the last two hours, which is unusual.
Physical Damage (Score:2, Insightful)
Has he also considered the physical damage that can occur by increasing your ejaculate by 581% and shooting it 13 feet?
How to get the message across to legislators... (Score:2)
Eventually, the judges and legislators MIGHT get the point.
Re:I don't speak lawyer..... (Score:4, Informative)
Re:Freedom of speech, except for Spammers... (Score:2, Insightful)
Your freedom of speech does not obligate anyone else to listen.
Your freedom of speech does not obligate anyone else to finance the distribution of your speech.
You are free to write all the emails you want, just don't expect me to spend my time and money receiving/storing/reading/deleting them.
If the guy wants to sell penis pills so bad, then let him buy a web site, a web writer, e-commerce software and some banner ads to advertise it.
He certainly cannot expect me to give him storage space and bandwidth any more than you can expect the local radio station or newspaper to give you space or airtime.
Freedom of speech != Force to Listen (Score:2)
Re:Freedom of speech, except for Spammers... (Score:2)
You're missing the other meaning of free speech.
You are not allowed to make other people pay to execute your right of speech, especially commercial speech. That's why commercial faxes are illegal. That's one reason why spamming can be illegal. Most spam is also fraudulent, from making illegal commercial claims to forging addresses.
But you already knew that.
Re:Freedom of speech, except for Spammers... (Score:4, Informative)
Because of this:
Or, in CyberPromo vs. AOL:Or CompuServe vs. Cyberpromo/Sanford Wallace
Leaving aside the fact that the First Amendment is a constraint on Congress, not private operators, it seems clear that commercial speech is (rightfully) not protected to the same extent as expressive speech.Spammers have freedom of speech (Score:5, Informative)
I realize that the days of the "Mom and Pop" ISP have pretty much gone the way of the dodo, but back in the mid-1990s there were quite a few of them. Unfortunately, many of these ISPs (which were pretty bandwidth limited and served a relatively small amount of users) were put out of business because of the overhead effects of spammers
This isn't to say I don't like spam, but if fucking C++ source code can be considered speech, why isn't "Do you want a longer penis?"
I'm starting to suspect that I've been trolled here, but assuming you're serious
Maybe the guy selling penis enlargment sauce really feels deeply about it and wants the world to know how truly great his product is.
Great! Then he can set up a stand on his lawn, put up an advertisement on his Web page, or put on a convention at his local Holiday Inn. Nobody is saying he doesn't have a right to promote his product. What people are saying is that there are some methods that cannot be used to do so. This has been true in the past, and it is true today.
Re:Spammers have freedom of speech (Score:3, Insightful)
I don't read it that way. I see nothing in the law that says anything about the content of the messages. Content, after all, is what we're talking about in freedom of speech and censorship cases. The law prohibits a method of distribution. It is entirely neutral to the contents. If it had prohibited the sending of (for example) anti-Catholic email, then you would have a freedom of speech case on your hands. As it stands, nothing in this law prevents you from taking the exact same piece of mail that you would have attacked people with and putting it on a Web page instead, and nothing prevents you from offering to email it to people who specifically request it from you.
This doesn't mention attacks or open relays or anything of the sort.
Not in so many words, but how can you spam without stealing somebody else's resources? You can't (by definition!)
It says you can't send unsolicited messages. That is the problem.
I really don't see why this is such a problem. There is a long tradition in this country of prohibiting people from being "held hostage", as it were, by unsolicited materials. This tradition has been reflected in other laws (such as existing laws banning fax spamming) and in court rulings, up to and including the United States Supreme Court. Nobody's freedom of speech is being violated here. Instead, the freedom of individuals to not be forced to pay for garbage that they don't want is being affirmed. That's a Good Thing (TM). The fact that it takes aim at the subhuman scum who bombard my mailbox day in and day out is icing on the cake.
Re:Freedom of speech, except for Spammers... (Score:2)
P.S. Please have dinner ready by 6. Thanks.
Re:I am not the most organized person in the world (Score:2)
Just because the mailer takes the cost of postage, does not mean there is not cost associated with the end user (me) not being able to make use of the mail. I can't wait until all my bills come in electronically.
Re: (Score:2)
Re:E-mail is not speech? (Score:2)
In a matter of speaking...yes (pun intended)
Noone forces you to take code, and pay for it, before you can see what it is, and without you asking for it previously. Not many people shove pages of code in your face out of the blue, without your consent, and then make you pay for the experience (although I'm sure some people would be excited by such a prospect...there are some sick, sick people out there
Noone forces you to follow a link - it's there if you want to follow it - but if you don't, it doesn't do anything. Think about watching a TV broadcast that contains a commercial with a link -- noone forces you to dial up to your ISP (possibly incuring phone charges or by-the-hour ISP charges) and follow that link. You can sit on your couch and ignore it.
The way email works, incoming mail (whatever it is) gets put on a mail spool. That spool is (generally, by pop3) downloaded to the end-user's computer, at their expense and without their prior consent (after all, it's their ISP account and their phone account that are being used - not the spammer's). The spammer foists the cost of their advertizing off on you - in the form of phone/ISP charges, not to mention server space and analysis time (the time it takes you to analyze your mail and decide what is/isn't spam, regardless of whether you do anything further with it.)
So spam costs the recipient money. The right to free speech doesn't extend to forcing others pay for the distribution of that speech. So, while they have a constitutional right to say what they want - they don't have a constitutional right ot make you pay for it.
Re:Whoo hoo! (Score:2)
The
There is celebration because the sending of unsolicited email has been outlawed.
When there is a discussion about trading illegal copies of copyrighted music, movies, or software, the majority of the people here say "fuck corporations" and do whatever they want. Talk about misaligned priorities.