Court Finds Spamming Not Protected By Constitution

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. '"

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Re:Others Pay for It...

[Anonymous Coward]

You could say I'm playing the devil's advocate, but I don't mean it that way. Your argument is similar to the argument of the ISPs who say that Google becomes rich by using someone else's infrastructure without paying for it. The spammer pays for internet access just like Google pays for internet access. If Google can do as it pleases with its network connection, then why should the spammer not be allowed to use the access he paid for? The network bandwidth argument is really not applicable: The packets are no more troublesome than any other packets. The recipients pay their email hosts for the servers and maintenance because they want to participate in the email system, which is set up to accept mail from anybody about anything. Nobody steals, not even figuratively. Am I stealing from you when I ping your computer? How about when I try to connect to some TCP ports? Your computer expends processing time and network bandwidth to receive those requests and to accept or reject them, because it is part of the internet. You may think this is silly, but what is the difference between an ICMP packet and a spam email? What is the difference between a DDoS and a slashdotting? The answer is obvious: Intent. Not bandwidth, not server resources, only intent.

From a technical perspective, the issue is rooted in the "dumb network" architecture of the internet, which places all "intelligence" in the communication end points. That means the network has no way of not sending you unwanted packets, because the arbiter of that is the node which can not or does not want to accept the load. When the email arrives at the node which can reliably decide whether you want to hear from that stranger or not (i.e. "you"), it is a moot point because all costs associated with that transaction have already been incurred. There are very few options: 1) Make the network intelligent, 2) improve end-point filtering to make spamming uneconomical, 3) hand the problem over to the fuzzy legal system, where judges and juries decide about intent or 4) unite against autonomous systems which tolerate antisocial behavior (there used to be something called a "Usenet Death Penalty", or even more severe an "Internet Death Penalty", where ISPs refused to carry traffic for and from certain uncooperative networks.) If you look at these options and think each of them through, you'll realize that there is no single perfect solution and that simplistic "he steals ma bandwidth" cries don't achieve anything but giving fodder to the people who want to sterilize the net.

First amendment!!!

[sumdumass]

This is a bad day for the first amendment, damn that bush for taking all our rights away.

Maybe the guy should attempt to argue jurisdiction like the wikkileaks guy was, maybe then he could get around it.

Seriously now, I don't like Spam as much as anyone. Well, I guess I don't like it less because I simply don't get that much but that is another story. Anyways, I find it ironic how temperamental we are with who's causes we want to support. A site leaking banking account numbers and personally identifiable information is a champion while a guy who mass mails flyer's through a computer system instead of the postal system is scum. I'm not sure where the big difference is. I have heard people claim it is because people pay for their bandwidth yet I don't see a anyone setting up a sender has to get permission first policy for all email. I mean the dork who forwards every joke he can find multiple times to everyone who already is listed in the forward marks of the email because he somehow added them all to his address book isn't getting in trouble. I don't know how many times I got that stupid Microsoft is giving you a cup holder email, I have to forward it to an account I could check in windows just to see what it does- tell me that isn't junk.

I think we are seriously going in the wrong direction here. Not because I think anyone has a right to spam, but because spam is now not covered by the first amendment and you should ask how this will play out when there is a mailing list or something for a political action commity or group. Will the leaders of that be jailed and fined because their spam isn't covered by the first amendment? You know, if the treasurer of Ohio can call five times in 2 days with a recorded message saying that Ohio will make sure you get to the polls if you vote for obama just call some number, and Sears can call me 2 or 3 times saying they are having a sale on items I am interested in, I see no different then this guy sending spam out.

The dissenters

[Harmonious Botch]

Before we get too uncomfortable with this, let us look at why they dissented. None of them said that spam was a good thing.

Judge Lacy wrote that the law was "...unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."

She is trying to protect the free speech rights of non-spammers here.

Re:First amendment!!!

[cetialphav]

I think we are seriously going in the wrong direction here. Not because I think anyone has a right to spam, but because spam is now not covered by the first amendment and you should ask how this will play out when there is a mailing list or something for a political action commity or group. Will the leaders of that be jailed and fined because their spam isn't covered by the first amendment?

No, this law would not apply to them. A political group will generally send its messages with a legitimate email header that identifies the source of the mail. If so, the Virginia law would not apply. The Virginia law addresses mails with fraudulent headers, which is what this spammer did. As long as you are not hiding the source of your mail, you are safe from this law.

Re:You should be able to send all the spam you lik

[CustomDesigned]

I pay a flat rate every month... it doesn't cost me a dime extra to receive spam.

Just one of my domains receives more than 400000 (as in 4E5) emails a day - all but a few dozen complete junk. If left unfiltered, this completely swamps the 5Mbit broadband connection, leaving it useless for anything but delivering viagra ads. With a complex system of auto-whitelist, auto-blacklist, bayesian filtering, SPF, domain reputation, and temporary IP banning, I get this down to a steady trickle of 56Kbit (day) to 400Kbit(4am) email traffic. This makes the internet usable, but then there are occasional false positives resulting in important mail being lost. On the other hand, delivering all the spam would result in essentially *all* the important mail being lost among all the spam. No, this is not an ISP, but just one guy with one mailbox selling stuff from a website. Every false positive means a lost sale. Furthermore, maintaining the filter to keep up with the constant arms race with spammer technology is a huge waste of developer time (even more so than reading slashdot).

So yes, receiving spam is incredibly expensive, and the perpetrators are just as much thieves as the guy robbing a bank. After all, one bank robbery doesn't cost any one person all that much ...

Re:You should be able to send all the spam you lik

[mlts]

Spam also comes with secondary hazards. Phishing attacks, websites which are for exploiting. These, if even one is successful can cost a company great expense, from data loss, to reputation lost if any corporate machines end up as zombie servers and found responsible for an attack.

Spam is expensive in another way. Sarbanes Oxley, HIPAA, and other corporate regs requires E-mail to be archived for seven years. This means spam too. So, those messages about turning Vienna sausages into Titan V rockets have to take up disk space pretty much permanently.

Re:You should be able to send all the spam you lik

[tomhudson]

I never said to deliver meds by email. However, snail mail, even twice a week, can work fine. I'm sure you're not receiving a new shipment every day. The scheduling problems would be minimal. If you're receiving it once a month, what's the problem with 2x a week mail delivery?

As far as direct deposit goes, not everybody I get checks from has that

I don't know about your bank, but mine allows me to send money from my account to anyone with just their email address, and vice versa if they have the same service. Maybe its time to change banks. Its not like they keep the physical check on hand any more anyway.

Daily mail service isn't needed. The original poster has a good point - moving it to once a week (or even twice a week) would save a LOT of energy and resources.

Up here, new streets don't get door-to-door mail delivery - they get a key to a lockbox within a block or two of their house. This was done as a cost-cutting measure, and it works.

Does spam realy pay??

[todlesstod]

I have read like 1000 posts on /. about spam. All of you so far, at least the comments I've read, seem to think that spam pays. Why? I mean, it will all be very simple if the guy that sells the spam is the one that sells the goods. But is this really the case?
I mean, to me, it seems that only really dumb people will answer to spam. And by realy dumb, I mean, complete retards. Most of the spam I get here is in Russian, and I don't even know the letters. I am thinking that, maybe the guys doing the spam are really getting paid by the guys selling the product. I mean, you go to some business, and say: "hey you want some cheap advertising? It may be illegal!". The other guy pays and it's all over. The spammer can eventually fake some clicks, it's not like his business is legal to start with!
Well, if anybody has some insight I will be happy to find out more, for my intellectual pleasure!