Court Finds Spamming Not Protected By Constitution 416
eldavojohn writes "In a split (4-3) decision, a Virginia court has upheld the verdict against the spam king making it clear that spam is not protected by the U.S. Constitution's first amendment or even its interstate commerce clause. 'Prosecutors presented evidence of 53,000 illegal e-mails Jaynes sent over three days in July 2003. But authorities believe he was responsible for spewing 10 million e-mails a day in an enterprise that grossed up to $750,000 per month. Jaynes was charged in Virginia because the e-mails went through an AOL server in Loudoun County, where America Online is based. '"
Others Pay for It... (Score:5, Informative)
argh (Score:5, Informative)
Re:My first "You're advocating a ..." (Score:5, Informative)
Re:What's most worrisome (Score:3, Informative)
Re:Eh, not really (Score:3, Informative)
Many states have freedom of speech provisions in their constitutions, sometimes provisions that are stronger than the First Amendment. State courts certainly do rule on these. Furthermore, a state court can and will rule on whether a state law violates the federal constitution. The US Supreme Court of course has the last say, but that doesn't prevent a state court from addressing the issue.
No Jury (Score:5, Informative)
Re:You should be able to send all the spam you lik (Score:4, Informative)
AIUI, junk mail helps keep First Class rates down because that's the way the bulk mail rate was designed. It's less than First Class, but more than it costs to process, leaving some extra to help defray other expenses. The way it works is, bulk mail must be pre-sorted by zip code in order to qualify. This cuts down on the amount of work considerably, so that even at a reduced rate, bulk mail costs the Postal Service less to deliver than they charge. Also, of course, much of it is sent locally, which lowers expenses even more.
Re:Since when is an apellate court a jury? (Score:2, Informative)
Re:argh (Score:3, Informative)
I don't think that's accurate. Story submission is not automatic, and editing does happen. From the FAQ [slashdot.org]:
Any of the above can be, and typically is, defined as editing. Unfortunately, what is missing from the list of criteria is a Common-sense Review of the Content (an onerous, time-consuming task, impossible to perform with a high school education or a quick Google or Wiki search, no doubt).
As to why that omission exists, my guess is that it's deliberate.
Re:Interstate Commerce Clause? (Score:3, Informative)
Re:You should be able to send all the spam you lik (Score:5, Informative)
I don't think you're selling people short. I think it's "obvious" that it was inevitable that it would be tried. I'll explain why...
I think where you're right is that there is a commonplace two-step meta-pattern where an idea is tried for an innocent reason and after succeeding someone tries to repurpose the idea for other purposes. So in your case, you're suggesting that if 'mail to resident' hadn't happened, variations and repurposing would not have been able to happen. Probably. But 'mail to resident' wasn't a one-time shot that if it didn't happen on a certain day wouldn't exist. It would have come another day. And even if not, other equivalently powerful and repurposable ideas would have.
For example, 'mail to many' is capable of being repurposed in the same way. Multiple-recipients could be said to be just as enabling. It wasn't in paper mail, after all--a piece of mail mostly went to one recipient (except those interoffice memo things where you could keep re-forwarding the same junk, checking off your name). So once the cost of sending to many was lowered to just naming who gets copies, that was also an enabling factor.
Many years ago (somewhere around 25 years ago, I think), when email was still young (not brand new, certainly, but still not heavily evolved) and when there were not many machines on the then-ARPANET, I obtained a piece of software written by someone at a certain texas university that was on the net. I wanted to reach the author, but had no idea how to find him. So I sent an email to smith, asmith, bsmith, etc. up to zsmith hoping to find someone at that site that knew the guy I wanted to reach. We didn't get tons of email back then, so this wouldn't have been obnoxious like it was now... There was no web back then, and no search engine. I don't even know if there was the 'postmaster' convention yet. (Maybe if there was I'd tried it and failed to get a response.) And hsmith replied, by the way, offering just the helpful info I'd hoped for. The rest of the mail bounced. I never used the technique again, but would not have hesitated to recommend it to another if they were desperate. My point in telling the story is just to say that ideas like this do present themselves when people are faced with barriers. It's the natural way things go.
So I doubt any claim that if 'mail to resident' hadn't happened, SPAM wouldn't have either. Because if someone could come up with the idea of blasting out a query for benign reasons, someone could conceive of pushing that to whatever limit made financial sense.
You could almost make the case that if 'mail for free' had not been invented, no one would have wanted to send tons of mail to people who might not care. That would have reduced volume. But there is a large and thriving junk mail industry even when stamps cost money, so even that isn't true.
I do think that "free email" is the real culprit. We all say we like it, but most of us pay more per year in time and money getting rid of spam than we would pay to deliver mail. In effect, we all subsidize spam in the guise of getting something for free... On net (pardon the pun), we don't get email free, and it would be lower cost if we charged for it.
The same is true for physmail junk mail, by the way: We subsidize it by the lower prices it gets. That's a business decision by the post office, but in the interest of the overwhelming resource usage and waste disposal concerns, I think it's ever more clear it should be at least the same price, if not much higher. But the problem isn't (any more) send to resident, since now they all swap mailing lists. The problem is, again, 'send to multiple'. And with global warming upon us, the stakes are even higher than with email spam.
Virginia Supreme Court decision link (Score:3, Informative)
Re:Eh, not really (Score:3, Informative)
I think the lack of exception for political and religious speech will not be an issue for SCOTUS because this guy cannot argue that he was engaged in political or religious speech. His mails were clearly soliciting business. SCOTUS rulings are generally pretty narrowly focused on the case at hand. So the real issue would be whether restricting anonymous bulk commercial emails violates free speech protections. If he had sent political messages, they would consider that, but since he didn't, they won't.
Free speech doesn't extend to private property (Score:3, Informative)
Last I looked, the Internet isn't like "the public commons - most of the networks accessed by spammers are privately owned. You have no protections for "free speech" in the co-opting of others' private property against their terms of use, and to the detriment of their customers. So, in the "spirit of free speech," take your bullshit opinion and go fuck yourself round the rim with it. Twice.
There is no defense for sending out tens of millions of pieces of spam. Both the spammer and anyone who buys crap from them needs to be punished. This is no more a free speech issue than the "right to lie" in advertising is.
Re:argh (Score:3, Informative)
I thought about posting it to slashdot, because it's new news about spam, but I ended up deciding not to.
The 49-page decision is rather technical, and I didn't think slashdot editors and readers would be able to get a good handle on it.
The court's main argument was that defendant didn't have standing to raise an overbreadth First Amendment challenge, because he was engaged in misleading commercial speech.
The court based this "rule" on one lone case from 1972 about topless dancing.
That case was based on another Virgina case that was overturned by the Supreme Court.
The rule depends on the idea that states can have different rules about First Amendment standing than federal courts can. This is true in that state courts can have less restrictive rules, because states aren't limited by article 3 of the us constitution, but it's far from clear that states can have more restrictive rules.
The court's treatment of commercial speech as less protected is also problematic, and Justice Thomas at least believes that commercial speech is substantially protected by the First Amendment.
The dissent (3 judges to 4 in the majority) ridiculed the standing decision,
pointing out that anonymity on the internet is protected under the Supreme Court's precedents such as Watchtower v Stratton and McIntyre v Ohio Elections.
The majority also rejected Defendant's reverse commerce clause argument, and may or may not have gotten this part of the decision wrong.
In this case, D. was spamming aol users, from a stolen list of aol users, so he had reason to know his spamming would impact Virginia. But the statute is problematic. It says that if a person in Hawaii emails an aol user in Alaska, they are subject to Virginia law, because aol happens to have its servers in Virginia. This is in tension with the general idea that states don't get to regulate what's going on in other states.
Justice Thomas rejects the whole idea of reverse commerce clause arguments, because he points out that there is no reverse commerce clause in the constitution. But a current majority of the court does accept the idea, and it isn't altogether clear how they would rule if that issue gets a petition for certiorari.
Defendant made some third losing argument I no longer remember.
The opinion is here in pdf: http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf [state.va.us]
If some of the above seems unitelligible and jargonated, see how I feel about slashdot posts that are just strings of initials and numbers that you guys know what they mean but i don't.
Above post is informative and insightful, because I'm a karma whore.
Re:Free speech doesn't extend to private property (Score:3, Informative)
I am probably more offended by the religious and political spam that I've recieved than by the commercial spam. The shear bulk of the commercial make it the umm "winner" by force of arms.
3 of 7 of your judges need a clue.
Re:Since when is an apellate court a jury? (Score:3, Informative)
Re:You should be able to send all the spam you lik (Score:3, Informative)
To name a few reason Bulk Mail is profitable:
presorted by zip - much less handling
doesn't use a printed stamp - no cost for stamp printing
generally mailed locally or short distances - no cross country airplane ride for the same price as a piece that goes two doors down in the same town
Seems to me that is junk mail was eliminated, the Post Office could get rid of much of its trucks, drivers and infrastructure. Without junk mail, I'd say residential delivery could be scaled back to one delivery per week, meaning one truck could serve six different routes instead of six different drivers and trucks going out every Mon-Sat. All that overhead eliminated would raise first class rates how? And now the remaining trucks would be loaded with letter sized full-rate first class mail instead of giant heavy bundles of newsprint mailed out for a few pennies each. How is that not better revenue for the post office?
The problem is you've only addressed one small part of the cost structure - drivers - and not the rest of the infrastructure needed to haul mail around the country. You still need post offices to take mail; sort mail; etc. - and in some smaller service areas two days may cover everyone - so do you close the post office the rest of the time and make all the employees part timers? Rural delivery is already done in some areas by carriers who own their own vehicle and get paid to use it; so then there are even less savings.
In addition; as people turn to electronic delivery less volume will go through the USPS; so prices need to go up to cover the large fixed costs - and tiered rates may be needed to reflect the actual delivery cost, much as is done for parcels today.
The real advantage the USPS has is they go to every house every weekday - if they could partner with FedEx / UPS to do their residential deliveries they could increase their revenues while reducing FedEx / UPS's costs for home delivery.