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. '"
Since when is an apellate court a jury? (Score:2, Insightful)
You should be able to send all the spam you like (Score:3, Insightful)
That would let people express themselves with all sincerity, and help keep the postal system afloat.
An all-around Win!
While part of me dislikes restraining speech (Score:5, Insightful)
And the dissenting judge's comments about restraining speech for political and religious spam? If a Hari Krishna or a LDS evangelist, or a Politico I don't like comes to my door, I have the right to slam the door in their face and choose not to "receive the message". And if they drop their crap on my doorstep, I get fined for littering.
People buried under torrents of spam don't get this option.
Eh, not really (Score:3, Insightful)
2.) Because it was a state court that made the ruling, what they say about whether or not SPAM is protected free speech is completely irrelevant. State courts have no jurisdiction over federal questions. They can no more declare SPAM not protected than they can declare that you really only have to be 32 to be President.
3.) This will obviously be appealed to the Supreme Court (that's the only outlet left after traversing the State courts), and, my guess is, it'll be shot down. The defendant's attorney is correct when it states that the VA law doesn't make exceptions for explicitly protected free speech, such as political speech, and the Supreme Court's strict scrutiny standard for this kind of thing won't let it through. VA may re-write the law to prevent commercial SPAM as different from SPAM that's simply expressing an opinion, but that'd be open to a variety of challenges as well.
4.) Nine years? What the fuck?! I mean, I hate SPAM as much as the next guy, and I spend a stupid amount of time keeping it out of the inboxes of my users, but nine years?!
Comment removed (Score:5, Insightful)
Re:You should be able to send all the spam you lik (Score:5, Insightful)
Do you realize that 'mail to resident' is where SPAM first got started, all those years ago? If it weren't for that then it's postulated less likely that email SPAM would have ever been conceived of in the first place. I don't know if you're in the United States or not, but what was the last time you really took a look at all the junk snail-mail you get every month? Try this experiment: save all your junk snail-mail for a whole year, and then weigh it, measure it's volume, and multiply that by every household in this country. Do you really think that the amount of money they're paying to get that unasked-for (lack of) content into your mailbox really does anybody any good? Or is it just a waste of natural resources, and furthermore making an already fat, slow, outdated U.S. Postal Service slower than it has to be?
Neither thing, or it's offshoots (telemarketing, junk FAX, etc) should exist, simply because they're all so highly abused, and it's basically impossible IMHO to regulate them.
How can an e-mail be illegal? (Score:2, Insightful)
The write-up states: "Prosecutors presented evidence of 53,000 illegal e-mails"
The e-mails can be sent in violation of the law and the person who sent them is an offender, but the e-mails themselves cannot be "illegal." Their mere existence does not constitute a violation of the law. If somebody said there were "illegal letters," "illegal phone calls," or "illegal documents," then it would be tantamount to saying that the government restricted the existence of information.
We live in a world where the flow of information is controlled, and indeed there are rational arguments on both sides about whether or not such restrictions constitute censorship. But the existence of information and the possession of it are not crimes. If such things were criminal, no rational mind could argue that the related laws weren't tantamount to censorship.
They are not "illegal e-mails." They are illegally sent e-mails.
Spam is a freedom of speech issue (Score:4, Insightful)
Re:You should be able to send all the spam you lik (Score:5, Insightful)
Yes. Sometimes there are things in the junk mail that are useful, such as ads from supermarkets. Also, people are paid money to create those ads, print them, address them and mail them. Not only that, the USPO is paid at bulk mail rates for carrying them. If it weren't for junk mail, first class mail would cost considerably more than it does. Junk mail subsidizes regular mail and helps keep costs down. The big problem with spam is that it doesn't cost the spammer anything to send, the costs are spread out among everybody receiving it and ISP fees would be lower if there weren't spam. It's not that it's junk that makes it so bad, it's the expense to the recipient.
Re:How can an e-mail be illegal? (Score:4, Insightful)
"Illegal pictures"
Specifically, pictures of people under 18 years of age in certain states of undress, or having sex.
What is worse is when the act itself is legal, but a picture of that act is illegal, like a 17 year old taking a picture of their genitals.
My big problem with having entire categories of illegal files is that it is easy to frame someone. Just copy some files off a memory card, or spam someone with images, and then they can be charged with several felonies.
Sexual assault is something else, and that should be illegal. But someone taking a picture of themselves and then because of that getting convicted of a felony? That is just insane [blogdenovo.org]
Re:You should be able to send all the spam you lik (Score:4, Insightful)
Any Chance... (Score:2, Insightful)
Re:Free speech? (Score:3, Insightful)
What does the nature of the speech matter? (Score:5, Insightful)
The whole issue of freedom of speech is a red herring.
Re:While part of me dislikes restraining speech (Score:1, Insightful)
Re:You should be able to send all the spam you lik (Score:3, Insightful)
I hear this said a lot, could somebody please explain to me how larger, heavier mail which costs much much less could possibly subsidize smaller, lighter mail which costs much more?
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?
Re:argh (Score:3, Insightful)
They are not editors; they are posters. It's no different than someone aggregating news articles and posting them on all the other 'geek' sites. It was just one of the first to add discussion to the mix and thus became famous.
Do not expect editing here, ever. It will not happen.
Re:While part of me dislikes restraining speech (Score:3, Insightful)
Protected speech? Not the issue. (Score:3, Insightful)
I always thought that the question of whether spam was protected speech or not was simply beside the point. Think about it. Political expression is definitely protected speech, but does that give the candidates the right to put their campaign signs up on your front lawn without permission? No. It's your lawn, their right to speak doesn't include a right to use your lawn as their venue. They want a place to speak, they get to hire their own hall or use strictly public spaces.
And no, there's not a parallel with snail-mail. With physical mail, the sender pays. I pay absolutely nothing for my mailbox, nor to receive mail, the sender's the one who has to foot the bill for the postage. With e-mail, though, I'm the one footing the bill for the mailbox it arrives in, and the bandwidth to receive it, and the storage space to hold it until I read it. The sender, by contrast, spends nothing whatsoever on postage sending the message.
Re:Spam is a freedom of speech issue (Score:5, Insightful)
Re:You should be able to send all the spam you lik (Score:5, Insightful)
Four years ago my wife and I moved into a house, having lived in an apartment before that, and discoverd that the amount of junk mail we were receiving was much much more. Within a short time I was getting so upset about it I was going to put a No Flyers sign out (Canada Post and many flyer delivery companys in Canada won't leave unadressed junk at your home if you simply put a sign saying "No Flyers") when my wife stopped me, explaining that while she disliked the quantity of crap we were receiving, there were certain flyers she had to have and as such a "No Flyers" sign was unacceptable.
I shudder to think of how many trees died so my wife could know what was on sale each week at Zellers and Walmart.
Re:Spam and the first... (Score:2, Insightful)
No, his argument is not weak, and for a reason which you yourself pointed out. We don't charge-back legitimate e-mails because they're, well, legitimate. I paid for a computer, and pay monthly for my internet access, in part, so that my friends, family, and associates can send me e-mail. I gave them my e-mail willingly and told them to write. It's a cost I willingly incur. Unsolicited e-mail uses resources that the sender does not pay for, and has not been invited to use. Hence, they have no right to use it. Also, my correspondents don't create bot-nets to hide the origin of their e-mails, forcing the infected computer's owners to foot the bill for the computing resources and bandwidth to send their messages.
Strong enough for you?
Re:You should be able to send all the spam you lik (Score:3, Insightful)
Judge Finds Spamming Not Protected By Constitution (Score:5, Insightful)
No. The jury found him guilty. The judge disallowed his First Amendment defense. Constitutionality is not a jury question.
Re:While part of me dislikes restraining speech (Score:2, Insightful)
How does that make it okay to equate rape with justice?
Re:While part of me dislikes restraining speech (Score:3, Insightful)
It's called "Getting fuckin' pissed." and when a spam run manages to get elude what I've done and I'm on the receiving end of mails from users who don't understand the realities angrily ask me "To see to it that I don't get nasty mails like this again!!!" I get fuckin' pissed! And when I get fuckin' pissed I wish no end of nasty things on spammers who are criminals when all is said and done. It doesn't mean I'd actually juice a bound spammer in a torturing electric chair or watch one being raped but I won't claim to be so big that it isn't fun to think about.
I'm not going to be sad that a spammer went to prison and I'm not going to be terribly offended that others are reveling in some possible consequences of that. The spammer certainly should have thought about prison before turning to crime for living. If prison rape actually offends you that much then spend some productive time on prison reform. Don't presume to lecture those who have to continually battle these criminal assholes.
Re:argh (Score:3, Insightful)
See, the thing is, there *is* editing going on. Sometimes they change things in the submission; sometimes for the better, sometimes for the worse. Sometimes they add sensationalist comments or headlines that didn't come from either the article or submitter. What people complain about isn't the lack of editing -- there certainly is editing, not to mention editorializing, going on -- it's the poor quality of the editing.
And why would we expect it? Well, for some reason, they expect us to pay them money in the form of subscriptions. At that point they've passed being "some random blog"; it seems only fair to expect a modicum of professionalism in the editing.
Comment removed (Score:3, Insightful)
Re:You should be able to send all the spam you lik (Score:3, Insightful)
Have you ever created, or even conceived of a computer that can process some 10,000 e-mail messages per hour?
Until you figure out what the costs of a real world ISP are, please, stop posting on the subject.
Re:You should be able to send all the spam you lik (Score:4, Insightful)
Re:Others Pay for It... (Score:5, Insightful)
Because it's $42.95/month instead of $32.95 you blithering idiot.
Yes, I'm using ad-hominem because throughout this entire thread all you've done thus far is piss on all logic that's been presented to you. You have no idea about the costs of running a business, no idea of how an ISP works, no idea about the demands of a real-world e-mail server with or without spam protection measures and no idea of any of the costs involved. Those costs are passed on to the END USER along with the bottom line of the recipient ISP and all ISPs in the transit stream. This is ILLEGAL, and the proof is in all other mediums; fax spam and telemarketer calls to cell phones are illegal because the RECIPIENT pays, not the sender. Do you understand that?
You say the spammers pay for bandwidth? Do you know how SMTP works? That a spammer can send a single e-mail to HUNDREDS OF PEOPLE at THEIR EXPENSE? Do you understand that the majority of all spam e-mail comes from the bandwidth of other END USERS on compromised machines? That spam is such a large black market business that there are gangs of programmers out there creating trojans and bot-nets for the express purpose of creating armies of spam bots to satisfy the demands of pieces of garbage like the one on trial at the moment?
Do yourself a favour and shut up. You're embarrassing yourself and god are you ever annoying in that whiny brat in the supermarket cereal aisle kind of way.
Re:You should be able to send all the spam you lik (Score:4, Insightful)
the "broken glass" fallacy states that a broken window is good for the economy because someone has to make a new window, someone has to make a hammer and nails to hold in the new window, someone has to install the window, etc. This destructive act - breaking a window - is a boon.
The reason that it's a fallacy is that it assumes the money spent on repairing the window wouldn't have been spent somewhere else, somewhere more productive. In an economy, it is always better for a new thing to be created than for an old thing to be replaced.
This isn't exactly what we're talking about with junk mail, but it's close. Yes, regular mail would be more costly, but the post office would also be spending a lot less on gas to lug all that junk mail around. Yes, junk mail designers would be out of a job, but their skills could be employed somewhere else, potentially somewhere more productive. The fact - and it is a fact - that junk mail has positive benefits does not mean that it is optimally beneficial.
Re:You should be able to send all the spam you lik (Score:3, Insightful)
No they don't. They infect machines through viruses/trojans/whatever, creating botnets that proceed to send spam for a short time until they get blacklisted. My boss at work took one a few days ago, resulting in out whole network being blacklisted. Along with our mailserver (YAY!)
Yes, no need to set up complex antispam systems, fund independent systems that keep blacklists of hosts, use spamtraps etc etc. Most professional installations of mailservers do use paid RBL sites.
To go back at my work example. I hadn't blocked access to port 25 through the firewall because some people in the office check/use their private mail, not passing through the company mailserver for sending stuff. Then my boss got a virus, everything got blacklisted and basically we had to sustain the following expenses:
How about coming back with some facts next time?
Re:Form "You're advocating..", side .b (Score:3, Insightful)
Lets see ... 9 years ... white collar crime ... he'll be on day release from club fed in 3 ... $24 million ... do the math ...
At $24,917 a day, its still profitable - and I'm sure that he won't mind spending a few bucks to buy himself any "protection" he might need.
In other words, unless they also confiscate the $$$$ he made, it wasn't a "successful prosecution" and it won't have much of a deterrent.
Re:You should be able to send all the spam you lik (Score:4, Insightful)
It's nowhere near a broken glass fallacy. This isn't a case of an illegal act, it's a case of a legitimate business model that employs many. If the postal service wanted to do away with it all they'd have to do is stop accepting it and it'd be over with. They don't. Why? Because it subsidizes their business model, it keeps their employees working, it fills in the gaps in their daily routes (eg; long stretches of houses that otherwise wouldn't receive any mail on a given day) thereby making the routes more predictable and efficient.
As to the inception; the ads you get in your mail are paid for by local businesses targeting specific areas of interest. A window company working in the area offering a promotion so they can employ their guys in a centralized area thereby keeping costs down and passing them along to the residents, a car dealership offering a sale for residents in their vicinity, a snow clearing service, etc. These businesses pay for this mail to be created thereby creating jobs in the printing and postal industry AND if they've done their homework and targeted properly they'll increase company revenues thereby creatinug work for their employees and increasing their own bottom line.
With recycling programs in high gear in most(?) heavily populated areas the resultant flyers are generally disposed of in the "blue bin" (or the local equivalent) and recycled to create new products and new employment opportunities.
There is no "broken window" fallacy here because the money was intended to be spent on targeted advertising in the first place. Try to do some research into retail outlets' advertising strategies and you'll see what I'm talking about.
Re:You should be able to send all the spam you lik (Score:2, Insightful)
Then nail 'em on computer intrusion. Leave my free speech alone.
No need for that anyway. I can handle my own whitelist just fine, thank you very much. Charge the suckers who need managed internet more and give be a bare pipe.... oh... That's the way it works already. Ain't free market capitalism great?
Your work example demonstrates damage done by virus... computer intrusion. Computer intrusion is illegal and not a free speech issue.
Re:Free speech doesn't extend to private property (Score:3, Insightful)
There is precedent for fining people who buy from spammers.
We jail people who aid and abet other criminal activity all the time.
A $10 fine for a first offense (+ 1 week off the net), $100 for the second (+ 1 month off the net), $1000 for the third (+ 1 year off the net) would see a HUGE drop in spam, as it would quickly become unprofitable and/or the suckers just can't replay any more.
Educating people about the higher death rates from not wearing seat belts didn't work - a $92.00 fine got > 98% compliance real quick. Money talks - people tend to listen to it when it says "bye-bye!"
Or how about a tax? $300 excise tax for every spam product purchased, including penny stocks, and every "my name is [insert name] and I am the [insert bs position] of [insert whatever] and if you give meyour banking details ..."
Bump it up to $1,000 for anyone who answers those get-rich-quick schemes asking people to be some business' collection agent and check casher/forwarder. It would give people an incentive not to be so quick to let their greed and laziness cloud their judgment.
Re:Free speech doesn't extend to private property (Score:3, Insightful)
Nah, you presume too much.
Read what I wrote. I specifically said we CANNOT give them the death penalty, and we CANNOT beat them with a baseball bat. How do you translate that into "cruel and unusual punishment?" You've been reading too much spam - its affected your ability to parse plain english.Besides, I already live in a country where people have more rights than US citizens do. We consider waterboarding to be torture, unlike your president and your government. Clean up your own act before mistakenly accusing anyone else of advocating cruel and unusual punishment, or being insane.
Fining people who directly support spammers by making purchases from them is certainly neither unreasonable nor cruel; neither is taking away their net access.
Re:Free speech doesn't extend to private property (Score:3, Insightful)
Also, it'd be a lot less hassle and there'd be a lot less complaining if we just seized the assets of spammers and spam companies. The stuff they sell has to come from somewhere -- find out where and put the squeeze on them.
Re:You should be able to send all the spam you lik (Score:3, Insightful)
"[Can junk mail be good?] Yes. [...] people are paid money to create those ads, print them, address them and mail them. Not only that, the USPO is paid at bulk mail rates for carrying them."
Let me rephrase:
"[Cab breaking the windows of one's own house be good?] Yes. [...] people are paid money to create the replacement glass, nails, deliver them and install them. Not only that, the USPO is paid for shipping them from the factory."
How is it different? Whether or not junk mail is a "good thing," this particular justification for it is completely invalid. If the post office wasn't delivering so much junk mail, their employees could be doing something else for which they would also get paid. If businesses did not advertise with junk mail, they could be advertising in some other way that would also pay people. Junk mail (and broken windows) do not create jobs. They merely divert those jobs from doing something else.
Note: I am not arguing against junk mail, but rather this piece of "logic." The rest of the original post was quite good, identifying the main valid arguments for and against junk mail: the senders and some recipients do actually benefit, but the senders don't face the true cost, passing on a negative externality to the unwilling recipients (and in the case of spam, the delivery services).
Re:You should be able to send all the spam you lik (Score:3, Insightful)
As someone else replied, the broken window fallacy has nothing to do with whether the act is legal or illegal.
Actually, the parable opens up thusly;
In this case it was the shopkeeper's careless son but it could be attributed to any act that results in a broken window legal or otherwise. Regardless, the legality of the act is mere semantics, the point of the parable is the window and the repercussions of replacing same, not the cause of the initial breakage.
How is it different? Whether or not junk mail is a "good thing," this particular justification for it is completely invalid.
No, actually, it's not. As I said in my response the paid advertisements sent by the post office are there to serve a distinct benefit to the merchants who are sending them. The broken window is something a homeowner would not do intentionally because, yes, they would have otherwise spent the money somewhere more productive, hence the nuisance of the "little boy". The parable of the broken window is merely a way to reassure and calm the shopkeeper / homeowner that the act is in fact helping the economy so it's not so terrible. The paid, targeted advertisements are in fact helping the economy for the reasons I spelled out in my previous post;
This isn't in any way a false economy. Flyer advertsing is far less expensive than radio and television and is more targeted which nets a far better cost:benefit ratio for their advertising dollar. Now, regardless of medium, that dollar will be spent in some way or another be it flyer circulation, newspaper flyers, newspaper/magazine adverts, radio/television spots, billboards, bus/bench advertising, direct telephone campaigns, door to door representation or any of a host of other means of getting their name out to the customer base in their target (surrounding) area.
You can easily find a way to discredit any or all of the above means of advertising thereby claiming each one in particular as a false economy but the fact remains that advertising remains the best way to garner attention to your business if done right and flyer advertising works and creates many dozens or hundreds of jobs in the process. It will never go away and the postal service will never refuse to deliver these ads so they're a part of our lives. Learn to live with it or suggest a better way to target an area of customers and present it to the local businesses and the post office and see how well it goes over.
If the post office wasn't delivering so much junk mail, their employees could be doing something else for which they would also get paid.
You mean the ones who are left after the massive rounds of layoffs. "More efficient" in this case means "fewer people on the payroll".
What else besides sorting, routing and delivering mail is a postal employee supposed to do? That's their job description; end of story. If you take away one of those areas there is less work to go around therefore fewer people required to do it.
If businesses did not advertise with junk mail, they could be advertising in some other way that would also pay people. Junk mail (and broken windows) do not create jobs. They merely divert those jobs
Re:Free speech doesn't extend to private property (Score:3, Insightful)
I'm sure that in the long run, natural selection would have worked just as well. What business is it of yours whether or not I endanger myself and only myself anyway? It's paternalism, or to be more honest, it's revenue collection masquerading as paternalism. Possibly the worst analogy to spam ever.