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Spam Your Rights Online

Michigander Beats Spammer With "Junk Fax" Law 438

TastyWords writes "According to this link, it's possible to apply the 'junk fax law' to successfully sue a spammer in small claims court. For those who are stuck in states which either have worthless (or near-worthless) anti-spam legislation, this creative approach of the law presents a creative method of turning the table on those who choose to spam first and ask questions later. All of the details are available for enterprising anti-spammers!" Update: 02/25 00:30 GMT by T : OK, so it's Michigander, not Michiganian. Too long as a Texon, Marylandite and Tennesseenaut.
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Michigander Beats Spammer With "Junk Fax" Law

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  • Michigander (Score:5, Funny)

    by paradesign ( 561561 ) on Monday February 24, 2003 @07:00PM (#5374344) Homepage
    we're Michiganders BTW
  • And 99% of the spam to one of my old email accounts is korean...

    (of course, spamassassing is very effective at filtering that).

  • Money ! (Score:5, Insightful)

    by IanBevan ( 213109 ) on Monday February 24, 2003 @07:02PM (#5374370) Homepage
    And for those who haven't read the article, one of the key things as far as I am concerned is the fact that the plaintiff won an award of $539.00 (including court costs). Multiply that by a-very-large-number-of-spam victims and I think some damage will be done.
    • Re:Money ! (Score:3, Insightful)

      by blincoln ( 592401 )
      IIRC, you must file small-claims suits against defendents in their own districts.

      $539.00 isn't so great if you have to buy airfare and take time off from work for your court date.
      • It's not the cost to you that's the draw, it's the cost to them.
      • Re:Money ! (Score:5, Informative)

        by BadDoggie ( 145310 ) on Monday February 24, 2003 @07:20PM (#5374553) Homepage Journal
        No. You file where YOU are, which is where the crime took place. A spam mesage may have bounced through servers in New Zeland, China, South Africa and Kazakhstan, but it ended up where you are. This is no different from buying a mail order widget that doesn't work. The company may be in East Nowhere, North Dakota, but if you're in Frostbite Falls, Minnesota, you sue them in the Frostbite Falls courts, and you have any advantages Frostbite Falls law might lend you. This doen't preclude you from suing in East Nowhere, but you need to show their violation under East Nowhere law, whereas in Frostbite Falls, the widget didn't work.

        Example: Don't sue corporations in Delaware; Delaware sells itself as corporation-friendly. Their laws are set up to make incorporation easy and make all things nice for corporations. Just have a look-see at the Central Delaware Chamber of Commerce site [cdcc.net] before you disagree. I set up two corporations in DE myself.

        • Re:Money ! (Score:5, Informative)

          by blincoln ( 592401 ) on Monday February 24, 2003 @07:55PM (#5374867) Homepage Journal
          You file where YOU are, which is where the crime took place.

          Experts [nolo.com] disagree [fraserlawfirm.com].

          (From the first link)

          "You sue an Illinois citizen in an Illinois state court for breach of contract. It doesn't matter where you live, or where the events leading up to the lawsuit took place because an Illinois state court has personal jurisdiction over all citizens of Illinois."

          This makes sense. Otherwise it would be incredibly unfair to defendents, who would have to travel to the location of the plaintiff on the plaintiff's whim.
          • Re:Money ! (Score:3, Insightful)

            by arkanes ( 521690 )
            Otherwise it would be incredibly unfair to defendents, who would have to travel to the location of the plaintiff on the plaintiff's whim.

            That's kind of the point :P. IANAL, but I certainly know of several cases where people have had to travel to defend themselves in court. I know it's happened in several cases where people have sued telemarketers (under state no-call laws), and there's one guy with a fish store in New York who's made a habit of suing people who badmouth him, and one of the reasons he's so successfull is that they either have to travel to NY or hire a local attorney to defend it. Sadly, I'm far too lazy to provide links, and I can't remember the guys name to search for anyway.

            I believe this may fall under the "minimum contacts" clause that's mentioned in your first link.

          • Re:Money ! (Score:3, Insightful)

            by Zeinfeld ( 263942 )
            Experts [nolo.com] disagree [fraserlawfirm.com].

            Experts, schmeckperts. Law is decided by judges, not lawyers. And if you read the history of practically any Internet related lawsuit you will see that the plaintif can usually get a suit brought in the court of their choice.

            Ralsky tried very hard to get the cyberpromotions suit taken away from Virginia's rocket docket to his own state where it takes three years to get a first hearing. And he failled.

            This makes sense. Otherwise it would be incredibly unfair to defendents, who would have to travel to the location of the plaintiff on the plaintiff's whim.

            In Internet cases the courts have generally considered that companies are doing business anywhere that they solicit it. The solicitation happens anywhere the defendant could reasonably expect that the message would be read.

          • law! (Score:3, Informative)

            by MacAndrew ( 463832 )
            Jurisdiction and venue are both easier and harder than you paint them. There are entire law courses on things like jurisdiction.

            Then there is subject matter jurisdiction versus personal jurisdiction, and the constitutional limits on jurisdiction versus the prudential rules of venue. If you're going to small claims court you hardly have to worry about all that. The pivotal issue is fairness. Sears was "present" locally, both because they had a store and because they inflicted an injury on the plaintiff in his home jurisdiction (imagine they'd sent him a bomb -- no one would quibble that it was "unfair" to drag Sears to the plaintiff, and the prosecutor). The small claims court has subject matter jurisdiction under the federal junk fax law, meaning they were the right place to hear this sort of case. And so on.

            The bomb example is a little unsubtle, but an illegal email is just a milder example of the same sort of civil wrong. It would be quite unfair to force the plaintiff to go to whatever rock the defendant was lurking under to litigate a $500 claim.

            If you really want to bend you mind, sometimes a place is appropriate for the lawsuit to be heard, but the law of another jurisdiction is applied (choice of law). Then you may find yourself applying a mix of local procedural law and foreign substantive law.
    • ...and start an organization that gathers the email/snail mail addresses of spammers and signs them up for every junk mail publication known to man.
  • Junk Faxes (Score:2, Interesting)

    by corsec67 ( 627446 )
    At my work, my bos is collecting all of the junk faxes he gets, and someting he is going to take all of these to small claims court. This is great for a precident to be set against an online junk emailer. The problem is identification, though.
    • IANAL, but since this was in Michigan small claims court (which is a division of the general district court), it can only be used as a precedent in Michigan. What is needed now is a case to be tried in federal court (which should be fairly straightforward since it's a federal law).
  • one question (Score:5, Interesting)

    by ubugly2 ( 454850 ) on Monday February 24, 2003 @07:03PM (#5374375) Homepage
    They didn't appeal, I got my check. They also sent out a contract thing they wanted me to sign as a disclaimer of responsibility and liability and all this nonsense. I talked to their attorney and he said it was standard. I said, "Not standard for me and I'm not signing it, I will be depositing your check however." He wasn't too happy about that, ... Iwonder what was in the disclamer?
    • Re:one question (Score:3, Insightful)

      Who cares - when you win the case, you don't need to sign anything. If they had settled out of court, it might be part of the agreement, but to try it on after they had already lost?
    • Contract? (Score:5, Informative)

      by jcr ( 53032 ) <jcr@macTOKYO.com minus city> on Monday February 24, 2003 @08:38PM (#5375130) Journal
      Asking you to sign a contract when they lost in court, is pretty goddamned sleazy. I'd suggest you send a copy of that to the court, and ask the court to bitch-slap Sears and their law firm for that.

      You don't have to enter into any kind of agreement with someone who owes you money pursuant to a judgement in order to collect what they owe you.

      BTW, Sears has a long history of sleazy shyster tricks. Look up what they did to the inventor of the socket wrench sometime. When I want tools, I go to snap-on.

      -jcr
      • Re:Contract? (Score:5, Interesting)

        by Patrick13 ( 223909 ) on Monday February 24, 2003 @10:42PM (#5375869) Homepage Journal
        Asking you to sign a contract when they lost in court, is pretty goddamned sleazy

        Well, since it probably cost them $100 to have their in-house law department tell them it would cost them a couple thousand dollars to defend themselves in small claims court, management said "Dammit, isn't there something we can do?", and their lawyer said, "Well... we could try to get him to sign this waiver...."

        Seriously I once lost a Sears card without realizing it, and the next month someone had gone to the local Sears and charged it up to the $3000 credit limit. I had no idea what had happened until the monthly statement arrived and said that I had spent $2999.69 during the last cycle.

        6 months later they were still hassling me, had me sign my signature literally 100 times and finally I just told them that I was going to countersue them, because their staff had allowed someone to make fraudulent purchases.

        Basically their clerks told them what my credit limit was, and judging from the signature it was a woman's handwriting so they allowed someone without ID and the opposite gender use my credit card, and engage in extremely suspicious activity: go on a spending spree that included the purchase of 4(!) VCRS, all from the same Sears location on the same day, in sequential purchases.

        I basically told their fraud guy - yeah it was stupid of me to lose my credit card in a parking lot without realizing it, but how the fsck do you explain that your clerks never for a moment tried to verify that the person making these highly suspicious purchases was allowed to go on until they reached within 31 cents of my credit limit...

        This happened 8 years ago, and still pisses me off. I haven't ever done business with Sears again, by the way.
  • Alan Ralsky (Score:4, Informative)

    by ShaiHulud-23 ( 632290 ) on Monday February 24, 2003 @07:04PM (#5374385) Homepage Journal
    I seem to remember seeing Ralksy's address somewhere (wink, nudge)... he's a resident of Michigan. Now we just need every citizen of the state to sue him for a couple hundred bucks each.
  • You can use a stick to beat a spammer.. however, you can't do it in small claims court, and you must be a fast runner...

    ---
    What this country needs is a good five cent ANYTHING!
  • Finally. (Score:3, Funny)

    by vmxeo ( 173325 ) on Monday February 24, 2003 @07:04PM (#5374395) Homepage Journal
    1) Hunt down spammers
    2) ???
    3) Profit!



    ...and now we have the missing step 2. Thanks Mark!
  • From the article: My computer has a fax modem, fax software, a scanner and a printer, I received this email using a dial up phone line connection and printed the message. As such, it falls under the law.

    So here's my plan:

    1. Print spam
    2. Rent building to hold printed spam
    3. ???
    4. Profit!

  • Awesome!!! (Score:3, Insightful)

    by DevilM ( 191311 ) <devilm@@@devilm...com> on Monday February 24, 2003 @07:06PM (#5374414) Homepage
    I am turning my computer into a fax machine right away. If enough of us do it something has to change. Although, with this administration it will likely be further loss of rights.
  • by MechCow ( 561875 ) on Monday February 24, 2003 @07:07PM (#5374425) Homepage
    I hope this has some affect but I don't see how it can. If spammers can be sued in Michigan, or even in all of America, what stops the spammers using nations do not recognise US law? Instead of Sears now shutting down it's spam operations (which I assume are incredibly popular) won't it just contract it out overseas through some shady company? Surely it must be proved that they were indeed the originators of the spam?
    • I think there is probably some reasonableness to the argument that if the spam promotes Sears' products, that they are likely the originators. It seems too unlikely that the spammers would take it upon themselves to send junk email for someone else's benefit without that someone else being an initiator.

      On the other hand, it should be clear that the law doesn't regard reasonableness very highly.

    • Instead of Sears now shutting down it's spam operations (which I assume are incredibly popular) won't it just contract it out overseas through some shady company?

      You can still sue Sears. Contracting out doesnt remove them from being responsible. Also if they contract out to commit crimes you can sue under the Rico act. Under the Rico act its 3x the ammount, so 1500 per spam. (IANAL, but It sounds good to me.)

  • Eh what? (Score:4, Insightful)

    by Anonvmous Coward ( 589068 ) on Monday February 24, 2003 @07:09PM (#5374443)
    " For those who are stuck in states which either have worthless (or near-worthless) anti-spam legislation..."

    Uh.. what? What states don't fall in that category?

    Seriously, is there a state that's got the problem under control?
  • by SlashChick ( 544252 ) <[zib.acire] [ta] [acire]> on Monday February 24, 2003 @07:13PM (#5374485) Homepage Journal
    Although I think laws such as the junk fax law are a step in the right direction, the problem I see with most spam is that the headers have been forged to the point of illegitimacy. Sure, if they include a link to a website, you could go after the person or people listed in the WHOIS record, but it would be easy for the administrative contact to claim that he or she didn't send the spam.

    Sears is an easy target -- they probably sent semi-legitimate spam that included contact and/or removal information, as well as the Sears website. However, I doubt that $500 will steer Sears in the right direction regarding spam. For $500, it's easier for them to write a check than to pursue it in court. I'd guess they made several thousand dollars off the spam mail, and that the $500 was written off as a cost of doing business.

    My point is, that between completely illegitimate spam that doesn't even have any real contact information, and companies that make a lot of money off of spam and who don't mind writing a $500 check every once in a while, this law won't be very effective.

    I will continue to argue that spam is a technical problem and needs a technical solution to solve it. Ultimately, even if the big companies like Sears stop spamming, there will always be the spammers who send out 100 million penis enlargement spam mails with fake headers and fake return addresses that render the spam nearly impossible to trace. The illegitimate spam problem won't be solved by laws -- it will be solved by the intelligence of the Internet community. I'd rather see this solved by technical prowess than by laws that will only encourage spammers to fake their mail headers to avoid lawsuits.
    • who don't mind writing a $500 check every once in a while
      Yes $500 is nothing, but if everyone starts to fight.
      $500 a day, $500 5 times a day, ...
      We are talking about serious amounts of cash, even to a company the size of Sears. Not to mention it probably cost them another $500 per appearance in attorney's time. I do agree though that the spammers that are untraceable will be the hardest to stop. My $0.02
    • technical fantasy (Score:3, Interesting)

      by MacAndrew ( 463832 )
      I really wish I could agree with you, that there is a tech solution to spam. But I refuse to believe that spammers can't in time outsmart a dumb filter. The filters performs very well now -- I use one -- but how long will that last? Few people are blocking spam at all, but when they do the spammers, like the Borg, will adapt.

      Moreover, the mere transmission of spam is causing harm. It clogs the arteries of the Internet. The ISP's despise it, and spend money fighting it -- my money. Finally, even though I have broadband it takes significant time for me to download those extra 20 messages. Thanks to some idiot out there who typed in my email as his, I've seen geometric growth in spam lately, from maybe 10% to 60% of incoming material.

      It is often argued that if you make something illegal people will just break the law, but that proves too much --- the same argument would supposedly undermine every law. Making it illegal will scare off the legit or semilegit bulk emailers, and it will make the shadiest spammer tempting targets for the prosecutors who has much better investigatory abilities than we do. I've talked to one of these guys, an assistant attorney general in Washington state, and was impressed how much work it took them to pin down one spammer. The state spam law was the hook they used to snare him, then they could also be sure to put him out of business. Believe it or not, there are smart people working for government, and in that case they even hired some outside help, PI's to track the guy down (he was quite slippery).

      I don't like the idea that the defense to burglars is better locks, and I'm willing to ask for the government's help on this one.
  • by Sirion ( 579818 ) on Monday February 24, 2003 @07:14PM (#5374492) Homepage
    "Under United States law, it is unlawful "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement" to any "equipment which has the capacity (A) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper." " Seems like this would be a nice source of spare income if it could be done reliably, but do I have to use a modem? :P
    • Under United States law, it is unlawful "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement" to any "equipment which has the capacity (A) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper." " Seems like this would be a nice source of spare income if it could be done reliably, but do I have to use a modem?

      No, you just need to have the capacity to.
    • My DSL connection consists of an "electronic signal received over a regular telephone line".

      I also have a printer, and run my own mail server.

      All I have to do now is make a few accounts and post some drivel on Usenet without masking my e-mail address and watch the funds come rolling in.

      I'd do it in a heartbeat, but it's the moving to Michigan part that gives me pause.

      Before any of you Michigan residents hit that "Moderate-Troll" button, just take note that I currently reside in California, so y'all can get a good laugh on my expense too.
    • "received over a regular telephone line onto paper."
      Seems like this would be a nice source of spare income if it could be done reliably, but do I have to use a modem? :P

      I have a cable modem. Does that count? It's pretty regular; I've never seen it constipated at all.

      More seriously, how tortured of a legal theory do you need to construct to cover broadband users? What is a "regular telephone line"? Does my cable modem count if my phone service is also provided by the cable co? If I'm using VOIP?

      This news is mildly encouraging, but because it hinges on such a specific "technicality" (I love using that phrase in a legal context), I don't see how much it helps a lot of us.

      Oh, yeah, IANAL, so consider my legal interpretation with great scepticism.

  • Small CLaims (Score:5, Interesting)

    by indiigo ( 121714 ) on Monday February 24, 2003 @07:15PM (#5374506) Homepage
    I've always suspected that it will come down to small claims court to bring spammers down. And it won't be attorneys, it'll be the little guy like you and I.
    Here's why:

    1. We have the time. A reward of $500 a day isn't too bad, tax free, I assume. Getting the headers, and finding a local spammer is the most difficult part of our task.

    2. It pays. Illegal acts are being committed, even without the fax laws, there are truth-in-advertising laws, smut laws, etc.

    3. Spammers are in your state. The sheer volume of mail sent means you're likely to eventually getting spam that originates from your state. This is important as most small claims courts will require both parties reside n the same area.

    I'm employed, not really worth my time, but there's a business model and a "Support-your-American-Economy" cheeriness about this. Now go take on the day!
    • Tax free? Compensatory damages are tax free. However, punitive damages are not. I believe that damages awarded under the TCPA are classified as punitive, considering the compensatory portion, the actual cost of a page of paper and the ink on it, is like 3 cents (or $54.95 if you have an HP inkjet).
  • It is valid. (Score:5, Informative)

    by www.sorehands.com ( 142825 ) on Monday February 24, 2003 @07:17PM (#5374527) Homepage
    The definition of a fax machine under the TCPA does cover a computer with faxmodem and printer. There are many lawyers who argue that it is not intended to be used that way and the courts will not support it. I have been unable to find any binding case (ruled on by an appeals court) in the country that has said a computer with faxmodem and printer does not qualify as a fax machine. The only case that comes close is one that argues over jurisdiction in state of federal court. The appeals court mentioned that it was spam in a footnote, but took no action. As this was an appeals of a summary judgment, the court had the ability to dismiss on the issue of spam TCPA not applying to spam, but did not do so.

    More information is at http://www.phillipsnizer.com/int-art111.htm

    • Re:It is valid. (Score:5, Insightful)

      by Tackhead ( 54550 ) on Monday February 24, 2003 @07:36PM (#5374700)
      > The definition of a fax machine under the TCPA does cover a computer with faxmodem and printer. There are many lawyers who argue that it is not intended to be used that way and the courts will not support it. I have been unable to find any binding case (ruled on by an appeals court) in the country that has said a computer with faxmodem and printer does not qualify as a fax machine.

      IANAL.

      How about a computer, a dialup modem, fetchmail or other POP client, and a cron job that regularly fetches mail and pipes the newly-fetched mail to lpr?

      That also sounds like it would qualify as equipment (computer, modem, printer) which has the capacity transcribe text or images from an electronic signal (noise to/from the modem) received over a regular telephone line (which is why I specified dialup) onto paper (which is why I specified lpr and a printer).

      For a better case, burn a Linux distro onto a CDROM, and turn an old PC/modem/printer as an embedded system. "Well, some of us like to print our email. I don't like to check my email. When I come home from a hard day at the office, all my email is printed out in the output tray of the printer, where I can easily read it."

      That sounds nuts to us, but I can think of several non-technical people who actually do treat their email that way -- "Email? That's like interoffice memos! Yeah, my secretary prints it all out, sorts 'em, and puts 'em in the inbox on my desk. By 10:00 am, I'm done dictating answers to my secretary, and I give her the tape so she can type up my replies on her computer thingy and send them out!"

      Heck, if you end up taking this to court, your judge may in fact be one of those people. But then again, IANAL :)

  • Nice! (Score:2, Funny)

    by Anonymous Coward
    I was wondering how one might argue that e-mail == fax (unless the law is very loosely worded) from the write-up. Here's what the article says:
    Essentially, I argued that under the title code, my computer is also a fax machine and that email is really no different from fax. My computer has a fax modem, fax software, a scanner and a printer, I received this email using a dial up phone line connection and printed the message.
    That's really creative! (Especially from a non-lawyer).

    It's not even particularly deceitful -- the reason fax spamming is illegal is because you use the resources of the recipient fax machine and associated items (fax paper, ink).

    E-mail does, in fact, use the resources of the recipient computer, not least of which is the downward ISP connection, for which recipient pays a monthly fee, and which has limits imposed.

    Still, it's pretty creative to say: "I printed it out. Now it's a fax. Pay!"

    So, if you think the decision will be upheld on appeal, you might as well start cashing in in advance: Change your spam redirect from /dev/null to your printer, and watch the money roll in. It's like printing currency!

    For more information, please send a self-addressed stamped envelope to the e-mail address in my profile, along with a check made out to my username in the amount of $3.99. This includes shipping.

    It's an informational brochure with no obligation. This guy is making it big. After a careful study of his case (IANAL), I've concluded that so can you.

    You'll never have to work again.

    Note: If you print this message you agree to opting in to my Slashdot Troll Service and may not sue me for junk faxing you. (If you don't print it it's not a fax).

    --
    I took some notes on our conversation, and then he sent me a fax. Do you want to see them?
    Just the fax, ma'am.
  • Fax modem? (Score:3, Funny)

    by wcbarksdale ( 621327 ) on Monday February 24, 2003 @07:20PM (#5374555)
    Suddenly there is a use for those things!
  • by gcalvin ( 325380 ) on Monday February 24, 2003 @07:21PM (#5374562) Homepage
    I think the judge screwed up here, and this will likely be reversed on appeal. Even if you accept that Mark's computer qualifies as a "telephone facsimile machine" under the terms of this act, it's pretty tough to make the argument that what Sears did was "to send an unsolicited advertisement to a telephone facsimile machine". They sent an email message to an SMTP server, which stored it in Mark's mailbox. Using his fax modem to dial his ISP and retrieve the message was Mark's choice. Printing it out was Mark's choice. I'm very surprised that the Sears lawyers didn't slam-dunk this one.
    • I'm very surprised that the Sears lawyers didn't slam-dunk this one.

      For $500, Sears probably figured that it was cheaper to pay than to litigate. It would cost that much to send a decent lawywer to the hearing. If you actually want the lawyer to go to the hearing prepared, the bill would be considerably larger.
    • this will likely be reversed on appeal

      Read the site. Sears has declined their right to appeal, and has already sent him a cheque.

      They sent an email message to an SMTP server, which stored it in Mark's mailbox.

      That's certainly one way to look at it, however another interpretation is this: they didn't send it to an SMTP server - they sent it through an SMTP server, which stored it until it reached it's final destination (Mark's computer.)

      Using his fax modem to dial his ISP and retrieve the message was Mark's choice. Printing it out was Mark's choice.

      It is entirely possible to run your own SMTP server on a dialup line, and have it route all mail to /dev/lpr.

      And while that would also be a choice, it's only semantically different from this case, and (even with your interpretation) would still legally fullfill all of the requirements of the statute.
    • by Fnkmaster ( 89084 ) on Monday February 24, 2003 @07:42PM (#5374764)
      Nobody is going to appeal a small claims court decision. Small claims courts don't make binding precent, so there's no real reason to (500 dollars is approximately the cost of one lawyer-hour of time, thus it would be a very, very stupid business decision to do such a thing). Sometimes companies will appeal because the precedent of the decision is very damaging to their business - I don't think small claims courts have any real ability to form precedent, or to be cited as precedent anywhere else (maybe by the same small claims court judge). So why bother?
    • INAL, but one of the voices in my head is..

      In most states, small-claims decisions can not be appealed. Period.
  • by Apuleius ( 6901 ) on Monday February 24, 2003 @07:22PM (#5374573) Journal
    1. That Ralsky fellow, him what allegedly got millions by spamming, lives in Michigan. 2. So do many Slashdotters. Hmm....
  • by valdis ( 160799 ) on Monday February 24, 2003 @07:23PM (#5374582)
    Here's my canned reply for these:

    I would like to see citations (especially case law) that specifically address your claim that 47 USC 227(a)(2)(B) is applicable in this case. In particular, such legal advice as I've seen states that this is *NOT* applicable to E-mail in general, and for this statute to be applicable, there would need to be a finding of fact that E-mail is legally a FAX. If E-mail *was* ruled to be legally fax, then you would have to comply with all the legal requirements that would entail.

    In particular, I suggest that you also read 47 USC 227(d)(1)(B),
    which states:

    (d) Technical and procedural standards
    (1) Prohibition
    It shall be unlawful for any person within the United States -
    (A) ....
    (B) to use a computer or other electronic device to send any
    message via a telephone facsimile machine unless such person
    clearly marks, in a margin at the top or bottom of each
    transmitted page of the message or on the first page of the
    transmission, the date and time it is sent and an
    identification of the business, other entity, or individual
    sending the message and the telephone number of the sending
    machine or of such business, other entity, or individual.

    Be careful what you ask for, you may get it....

    (Hint - was *your* e-mail stamped with the originating phone number at the top of each page? ;)
    • All that says is that, under that law, the person sending e-mail spam is doubly in trouble.
      1. They are sending an unsolicited adverizement to a fax machine.
      2. They also are sending one without their phone number.
      And of course, as long as it doesn't have a printer connected, the *sending* machine may not be a FAX machine. But its still illegal to send the adverisement to a FAX machine, regardles what you use to send it, right?
      • No.. *EVERYBODY* is in trouble. The legal reasoning is along these lines:

        1) Junk Fax are a subset of all fax.

        2) To make spam e-mail legally a junk fax, you first have to rule that all e-mail are fax.

        3) Having done that, *all* e-mail is then bound by *ALL* the laws regarding FAX - including a *phone humber* at the top of *each page*. You don't get to pick-and-choose.

        This is pretty well understood in other legal fields - if you try to get around (for example) IRS regs by declaring yourself a non-profit, you get stuck with all the regs for non-profits....

    • ...(they must include) the telephone number of the sending machine or of such business...

      Actually, this seems like a good possible solution to the spam issues. If you were required to place in the header of an email some working contact info (like a real return email address that went to you) then perhaps that would help to deture spammers... I mean all the legitamate emails I receive have their return addresses on them.

      Getting them not to have a box that automatically deletes everything is more difficult. Of course, what's stopping the junk-fax places from getting a phone number and simply not answering it.
    • (Hint - was *your* e-mail stamped with the originating phone number at the top of each page? ;)

      Sure was. The phone number was the null string, since there was no phone involved in sending. Moreover, since email is not the sort of fax that is divided into pages, it has zero pages. Therefore since the originating phone number must be printed on the top of each page, it need be printed only zero times. That was done precisely as the law requires.

      The legal definition of a fax machine is not dependent upon what you, or the marketing division of the Xerox Corporation, call a fax machine. The relevant legal definition of "electronic facsimile machine" is spelled out in plain English in the statute law. A claim that this definition does not model what you think of as a fax machine does not enter into the issue. The words "electronic facsimile machine" are simply a string variable, standing in for the full definition given elsewhere in the statute. The statute could use the word "zruty" in place of "electronic facsimile machine" -- since it gives a clear definition of what is meant by the term, there is precious little weasel space.

  • by Hao Wu ( 652581 )
    What about faxs that come from Russia? When faxer pays Russian mob to look the other way? When police want to wheel and deal with George Bush instead of listen to him like they should (in order to take care of Russian crime with advice and recommendations)?

    Other countries may be so corrupt that their affairs are not in order. They can not deal with some problems effectively, which means that we may feel the pain for some time. Pricey faxes are only one of them.
  • by Anonymous Coward on Monday February 24, 2003 @07:30PM (#5374645)
    ...we're about to blow open one of the biggest Slashdot contradictions there are.

    So. This guy successfully sued his local Sears branch for sending him a piece of Spam mail, for a total award of $539. The theory is that (being that Sears is a place you can sue), them sending it to his computer, means that the Sears store, wherever it is, is culpable for doing 'damage', 'irritation', or whatever, to his computer. Great, good for him.

    How do we apply this logic to things like copyright infringement over county, state, national, international borders?

    This is bullshit.

    The same people who are cheering this ruling, convinced it will slow down or stop spam, because those damned spammers will be liable for the shit they send will be the very same people screeching in horror because the **AAs are 'breaking into your computer' by browsing what's already there to find illegally traded files.

    Ladies and gentlemen, you can't have it both ways. Either computers exist on the internet, so they exist in all countries at once and are obligated to follow any law in any place someone decides to sue them with, or they're not. But I for one am sick and tired of reading what feels like opportunistic banner-waving: if it serves my interests, then that's what I want.

    Look at the bigger picture. Please.

  • by bahwi ( 43111 ) on Monday February 24, 2003 @07:34PM (#5374673)
    Can't we all just accept the fact that we are all Earthikans and live in peace?

    Vote Nixon in 3000!

    (it's a Futurama joke)
  • by Soul-Burn666 ( 574119 ) on Monday February 24, 2003 @07:37PM (#5374718) Journal
    I read it as:
    "meshugener(1) beats spammer!"
    Ahhh.... violence that everyone agrees to....

    (1) madman in yidish
  • by airrage ( 514164 ) on Monday February 24, 2003 @07:42PM (#5374773) Homepage Journal
    Gentlemen,

    While this small victory is somewhat nice, it is quite too early to celebrate. It's a simple algorithm: take the number of emails produced by a spam-king, multiply by the number of possible suckers (gross profit), subtract the $500 per infraction of those willing to take the time and effort (net profit), and the result is well a very, very large pot minus a few pennies.

    I would suggest taking a drug that fixes the infection rather than the symptoms. But I could be wrong.

    Peace out
  • by avij ( 105924 ) on Monday February 24, 2003 @07:43PM (#5374779) Homepage
    I was hoping to see a title like "Michiganian Beats Spammer With A Baseball Bat". THAT would have been more to my taste.
  • Hmmm... (Score:2, Interesting)

    I'm really surprised that a company as "prestigious" as Sears is sending spam. I would have been interested in seeing the full headers.
  • by btempleton ( 149110 ) on Monday February 24, 2003 @07:49PM (#5374821) Homepage
    Some will say the TCPA applies to fax, some will not. Most will not -- most don't even know much about it, let alone have a willingless to stretch it to define an E-mail as a Fax.

    Sadly the TCPA is fairly toothless. Yes, you can sue for $500 and you might win. I have done so myself, and collected. But after spending several hours of work, and the average amount of time spent per successful collection is normally high enough that it's not worth your trouble.

    Some small claims judges think you can't sue somebody out of state, some thing you can. Even on spam laws where there isn't the TCPA question.

    There is a valid question of whether you should be able to sue somebody out of state in small claims court for $500. Think about it -- it costs $500 at least to come and defend yourself in an out of state case, so how can you win, even if you are totally innocent?

    How would you feel if you -- not a junk faxer at all -- got a summons to appear in court on the other side of the country to face a $500 payment for junk faxing? You could go and defend yourself, but it would cost you way more than $500 in costs, don't even talk about your time. You can't send a lawyer, if somehow that would save money.

    So it's tough to figure out how to allow this. And spammers and junk faxers are rarely local, though sometimes they are.

    What if you took the risk that if you sued an out of state spammer, you would have to pay his expenses to come out if you lost, or take them out of your winnings if you won? I would not.
  • The Bad News (Score:2, Interesting)

    by scott__ ( 19343 )
    IANAL but I believe that the reason he was able to sue Sears in small claims court was the fact that Sears was doing business in the same state.

    If the party you are sueing is out of state, you have to take the matter to district court. The filing fee is usually only a little more, but if you don't win your case, you can expect to be held accountable for the spammers attorney fees.

  • by LuxFX ( 220822 ) on Monday February 24, 2003 @08:02PM (#5374913) Homepage Journal
    What I find most interesting about this is not the use of the junk fax law, but that Mark was able to sue Sears about it. This is something I've been wondering lately anyway: even if it might be next to impossible to track down the sender of a spam email, could you not still hold the company whose products are being advertised responsible for the spam?

    IANAL, but I don't find it a fair stretch to say that, possibly even in a legal sense, the spammer was respresenting the company. The same can extrapolated to cover owners of websites, etc. -- any person, company or service that is the subject of the spam.

    I was doubtful of this until now -- it seems like Mark pulled it off!

    So then, why we don't stop trying to stop spammers, and go after the source? By attacking those that fund the spammers the spammers will still go down, and the targets are easier to find.
    • What I find most interesting about this is not the use of the junk fax law, but that Mark was able to sue Sears about it.

      This is possible under the federal anti-fax spam. Hooters was fined over a million bucks for a fax spam run by a marketing company that went out of business before the complaint was files.

      If the company actually being advertised is aware of the ads, they are responsible under the fax spam law.
  • by jetmarc ( 592741 ) on Monday February 24, 2003 @08:24PM (#5375048)
    Amazing, he did the right thing. He modified his computer until it fell under the fax machine law. He uses a modem to connect over telephone lines (not cable, not dsl). He prints his email to paper, and he has fax software installed to send scanned paper documents to other fax machines. So his equipment can be considered a fax machine.

    We saw a similar thing recently, with Lexmark. Everybody can produce a plastic box that fits into Lexmark printers, and nothing can stop them from doing so. Except Lexmark & the DMCA - Lexmark found that they have to mix the plastic box (which is not protected by law) with an intellectual property item (which is protected by copyright) and an access restriction (which is protected by DMCA). Glue all 3 things together, and voila. You've got a plastic box which can not be legally copied.

    So, when the law works AGAINST us consumers so often, why shouldn't it work FOR us once or twice?
  • Texon? (Score:3, Funny)

    by drinkypoo ( 153816 ) <martin.espinoza@gmail.com> on Monday February 24, 2003 @08:40PM (#5375145) Homepage Journal
    Update: 02/25 00:30 GMT by T: OK, so it's Michigander, not Michiganian. Too long as a Texon, Marylandite and Tennesseenaut.

    I think you mean a Texan. A Texon would be, like, the quantum unit of Texases.

  • To wit.... (Score:3, Informative)

    by dacarr ( 562277 ) on Monday February 24, 2003 @08:52PM (#5375216) Homepage Journal
    Note, IANAL.

    Many states will not honor small claims suits if it can be determined that the venue is improper. In California, you can go after somebody if you have a REALLY good reason outside of state lines.

    It's why that pet supplies guy can't legally sue somebody outside of his area. You file an improper venue plea and they effectively dismiss the case with prejudice.

  • by geekee ( 591277 ) on Monday February 24, 2003 @09:18PM (#5375382)
    "I received this email using a dial up phone line connection and printed the message."

    It seems to me the junk FAX doesn't apply unless you automatically print out all your e-mail. Otherwise, you're not using paper and ink for an unsolicited ad. Voluntarily printing out an e-mail just to take the spammer to court sounds like it oversteps the bounds of the law since at this point you chose to use the printer, not the spammer. I'm surprised any judge would convict. It probably will be overturned if it becoomes a big problem for spammers. People have been trying unsuccessfully to use the junk FAX laws to prosecute spammers for years now.
  • by anon*127.0.0.1 ( 637224 ) <{moc.amrakduab} {ta} {todhsals}> on Monday February 24, 2003 @09:29PM (#5375461) Journal
    I'm on broadband, my PC doesn't even have a modem in it. Even if I dropped a cheap fax modem in, the spam still doesn't *arrive* by phone line, so this law doesn't apply.

  • by Fiery ( 21015 ) <rsoderberg@gmail.com> on Monday February 24, 2003 @10:36PM (#5375833) Homepage
    If email sent to a given address is carbon copied at your end to an Email->Fax gateway, then their spam emails are indeed being sent to a Fax machine and are protected by the law.

    The trick is to redirect messages that seem to be spam; you'll get the occasional false positive, which is totally fine; at the end of the day, you shred the positives and pick a spam to write up a small claim about.

    Hell, you could profit off of this, with the quantity of spam that's out there. Make a living off of receiving spam, perhaps.

    If it was accepted as a valid use of the law, that'd destroy the spammers pretty quickly, with the effort of Slashdot behind those fax machines.

    Imagine the force of Slashdot behind an initiative to print out and submit a small claim for at least one spam a day, per user. Thousands of claims would be filed in a single day against the same small set of companies. Some spam companies pull you off their list if you bring legal action against them, so a few hundred Slashdot users stop getting spammed by someone.

    Repeat this daily for a month; you can also file multiple suits per day, if you have time. The sky's the limit (and your 100% recycled printer paper). Make some friends at the court; people will consider you a superhero if you help shut down spamming as a profitable enterprise.

    I hope this case is validated; if so, there's ways to make people listen. Perhaps file a thousand small claims in a thousand courts on a single day, providing attached to the claim a list of all thousand courts. Send a press release to the major papers (and the local papers), tv & radio at 12pm after the filings, and see what happens.

    The way to end spam is to make it unprofitable.

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