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Virginia Supreme Court Strikes Down Anti-Spam Law
Posted by
ScuttleMonkey
on Fri Sep 12, 2008 02:30 PM
from the starting-the-can-judge-act dept.
from the starting-the-can-judge-act dept.
Skater writes "The Washington Post is reporting that the Virginia Supreme Court has struck down the anti-spam law that was used to convict spammer Jeremy James, on the grounds that the ability to be anonymous was more important than the problem of spam. Strangely, the same court only a few months ago upheld the law. 'The court noted that "were the 'Federalist Papers' just being published today via e-mail, that transmission by Publius would violate the [current Virginia] statute." The court suggested that the law does not limit its restrictions on spam to commercial or fraudulent e-mail, or to unprotected speech such as pornography or defamation. And when the state suggested that the court merely tailor a restriction to the law within its opinion, the court declined.'"
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Clueless judges (Score:4, Insightful)
If 'Publius' spammed my inbox with the Federalist Papers I'd want the asshole's account yanked as much as the latest grow yer tool spam. Spam is unsolicited broadcast mail, period. Zero tolerance.
The correct way to publish would be for Hamilton & friends to open a blog under the Publius pseudonym.
Re:Clueless judges (Score:5, Insightful)
Well if the courts gave a law that made it illegal for you to send an email anonymously it would probably have just as many slashdotters saying how it is a violation of our rights. Sometimes to protect your rights you need to deal with people who abuse them.
Parent
Re:Clueless judges (Score:5, Funny)
lipstick.
Parent
Re: (Score:2)
There isn't much difference. If you don't want to receive e-mail, don't.
Re: (Score:3, Insightful)
What is wrong with us, as a society? The difference is obvious, and yet we can't figure out how to write it down. Let lawyers try, and the language defines its own loopholes with words like "substantially identical", "more than 1000", "for commercial gain", "possible interest to the recipient", etc. There's really very little question about what is spam, but there is much question about what is reasonable for a court to decide. Our lawyers need to grow up and stop being such babies about interpreting th
Re:Clueless judges (Score:4, Insightful)
You have the right to send a message anonymously, so long as *you* bear all the costs associated with its transmission and receipt. Since there is a cost in terms of time to review, that pretty much covers sending anonymously to private individuals. The media, your representatives, and perhaps even law enforcement, might be expected to accept anonymous messages - but not by email, generally.
If you send me an email, the mailserver at my end *WILL* record the IP address of the server it gets it from (right in the message headers), and unless your email providers server is horribly misconfigured, it will have already recorded either your PC's IP address, or in some cases some other information that can be used to identify who controlled the Internet access account that was used to send it. (Or, misconfigured servers that *dont* record that information, are generally placed on blocklists and my server wont accept any email from them)
You want to send anonymously - put your message on paper in an envelope, pay the proper postage, and mail it.
Parent
Nail it to a telephone pole. (Score:3, Insightful)
Why do you believe that it is the only method?
You can nail it to a telephone pole.
You can print it and leave it at bus stops.
People have even nailed things to church doors.
What is it about this subject that makes people turn off their brains?
Re: (Score:3, Funny)
Re: (Score:2, Insightful)
This is such a logical problem. It wouldn't be published by e-mail, you're right. Not only that, this is a pathetic appeal, trying to get patriotic support for SPAM. What the fuck.
Bad analogy (Score:5, Insightful)
If Publius sent the Federalist Papers via email to hundreds of thousands of people, it would BE spam. The Federalist papers were items that people VOLUNTARILY sought out - they weren't shoved into everyones mailboxes and under their door thresholds. If they were, they would have been ignored and thrown away just like junk mail is today.
Political freedom of expression is protected; what isn't protected is having ANYTHING shoved down my throat using my own resources.
Re:Bad analogy (Score:5, Insightful)
As much as we hate it, there is no fine line of liberties... we may be a "free" country, but not entirely free.
We try to define "freedom until you harm others", but seeing how much more of babies we've become (with less violence, wars, etc.), we see minor things "cause us (mental) harm" and try to justify that.
I hate spam just as much as anyone else, but they should have the freedom to send me it, since I am not physically harmed.
Oh and for those "give us your e-mail then!" people, its my username at hotmail. Good luck cause I last checked it a week ago, the 2nd to last time I checked was 6 months ago.
Just funny, cause back in the day, all drugs were legal, cause you weren't physically harming someone (stabbing etc.). Now it's justified with "you might harm someone if you abuse it" so they removed it entirely to prevent the chance for abuse. I'm not for or against drugs - just an example of how freedom is a slippery slope that can never be truly solved.
Parent
Re: (Score:2)
People who send me spam, have done so without my consent, and they are causing me undo effort as a result.
I think a better analogy would be someone trespassing on your lawn and running around your house insisting you (sign petition/hear about candidate X/order viagra).
Re:Bad analogy (Score:5, Insightful)
If someone is holding out a piece of paper for me to take, I can say "no thanks"
If someone is shoving that piece of paper in my pocket, and doing the same to THOUSANDS of others simultaneously, he would be arrested for assault.
That's the problem - there IS no "real world" analogy that fits properly. The problem, in this case, is that handbilling is an even poorer analogy than most. Junk mail would be a better analogy, except for the fact that the costs are paid by the mailers, not the recipient. Probably the best analogy would be telemarketing calls to cellphones, where the user pays for a call that they don't want. Oh, wait - that's ILLEGAL.
And don't say that it doesn't cost the recipient anything. I pay for my connection, and that money goes to a number of different people to pay for bandwith, among other things. If spam were gone, bandwidth needs would lessen and my rates would decrease. So I AM paying for spam, just not directly.
Parent
Re: (Score:3, Insightful)
That's the problem - there IS no "real world" analogy that fits properly.
Sure there is: door to door solicitation. For someone to come up to your door to sell you something, they have to enter on to your property, and waste your time talking to you. And society has deemed this to be acceptable. The onus is on you, the person who does not want solicitors at all, to make his wishes known, whether in response to a particular solicitor ("Go away") or to all solicitors in advance (e.g. a "no solicitors" sign, wh
It get worse (Score:3, Insightful)
they weren't shoved into everyones mailboxes and under their door thresholds. If they were, they would have been ignored and thrown away just like junk mail is today
Even if they were, they'd just be tossed on the hearth, but the cost would be largely borne by the Federalists.
You have a right to stand on the sidewalk in front of my house saying whatever you want. You don't have a right to come onto my porch, use my paper and pen, and start writing whatever you want under the guise of 'Free Speech', you're c
anonymous != fraudulent (Score:5, Insightful)
No. That is wrong. You can be anonymous without spoofing IP addresses or faking domain names.
Correct your usage of "anonymous" first and then I might agree with you.
Bullshit. You still don't understand "anonymous".
Bravo. (Score:5, Insightful)
And here we get to a fundamental question about what we want the Net to be. The court was entirely right to balk at deciding this for us.
We can have the right to communicate anonymously over the Net. Or we can have the right not to be contacted by anonymous people. We can't have both.
Wrong. (Score:2, Interesting)
What part of that concerns sending a million unsolicited \/1agr4 messages?
In your world, is it considered okay to use hire a dozen people with bullhorns to spew political rhetoric around someone's house at midnight?
No?
OMG! They're taking away FReedom of SPEech!!!111
No one said that he could not publish whatever he wants.
The problem is his DELIVERY of it to peopl
Re: (Score:2)
But for people to express in any legally rigorous way that they DO want it, they have to know in advance about its existence, which is something an anonymous party just can't get without contacting some people who might not want to hear from him. ...to hire a dozen people with bullhorns to spew political rhetoric around someone's house at midnight?
No, but the trivial real-space rules take care of that scenario nicely. Zoning and noise regulations are enough to keep their activities to daylight hours, and it
Re: (Score:2)
Market victory ensues.
Re: (Score:3, Insightful)
is it considered okay to use hire a dozen people with bullhorns to spew political rhetoric around someone's house at midnight?
s/at midnight/before dawn/
Yes, that's standard political campaigning where I live.
The problem is his DELIVERY of it to people who do NOT want it.
No. That is as misguided a statement as the law that was struck down. The problem is economic - the economics of email, where all the costs are borne by the recipient, are broken and encourage spamming.
I get a lot of email I do NOT want that is not spam.
I have a big problem with geographics-based laws being applied to the internet. My email goes to a mail server in Virginia. I work in California and live in the Philippines
Re: (Score:2)
You can publish your communication anonymously (pseudo-anonymously, really, since with a proper subpeona, you can be identified) on a website. Those that don't want to be receive your anonymous communication can choose not to visit your website.
Other laws are still valid (Score:5, Interesting)
It is illegal to sell prescription drug without a prescription. Its also illegal to offer drugs to children in most states. Everyone here needs to call their country District attorney and ask them what they are doing about peddling drugs over the internet. It almost election time and some of them are trying to get elected as a state DA so now is the time to get on their case.
Honestly, I can't fault them for this. (Score:5, Insightful)
The court is right about one thing: the law is too vague. Fix the law, and then there will be no problem with the courts.
Mod Parent Up (Score:5, Insightful)
The rest of the posts missed this entirely. The court was right here too...
And when the state suggested that the court merely tailor a restriction to the law within its opinion, the court declined.
Courts more or less interpret laws and process law breakers. Changes in the law are supposed to come from legislation, not the bench.
Parent
Re: (Score:3, Insightful)
Similar to the national do-not-call registry for telemarketers, there should be a national do-not-send-UCE registry for email. Then the courts could freely inflict punishment on violators while keeping clear of the First Amendment.
I defend not what you say... (Score:5, Insightful)
but your right to spam everyone with it?!
First Ammendment in action?
Spam is the ideal litmus test for where someone stands on the rights of free speech. It's almost universally objectionable, never warranted, and offensive to just about everyone.
Yet I'm not sure if there's anyone in the ./ crowd who will stick to their free speech principles when such principles inconvenience them personally. Is there anyone here who, upon receiving spam, remarks to themselves, "Ah, yes, free speech is not dead. I'm glad that - although I personally could care less about replica watches or increasing the size of my body parts - that somewhere, someone out there is free to send such materials to my inbox. USA! USA! USA!"
Because it stands to reason that if spammers have no right to send anonymous messages, then neither do you or I. While a lot of people may not like this particular consequence of free speech, it's far more dangerous to do away with the legal protections for anonymous speech.
Re: (Score:2, Insightful)
Fraud, wire fraud, and trespass to chattel are illegal in the US. Are you seriously claiming that laws against all three violate the first amendment?
Re: (Score:2)
So is libel and slander. As is yelling "fire" in a crowded theater when there is actually none. Free speech does have limits. In particular, when speech causes harm, it has to be scrutinized closely for validity. And if it is invalid, then it may not be legal after all.
Spam causes harm, and conveys a message that is false in more ways than one. Therefore, it isn't protected by the first amendment. However, maybe the existing law was too broad...
Re: (Score:3, Insightful)
You have a valid point. However, I would argue that there is a large difference between expression, abuse, and advertising.
Yet I'm not sure if there's anyone in the ./ crowd who will stick to their free speech principles when such principles inconvenience them personally.
You seem to think that everybody on Slashdot thinks the same about free speech, and that everybody is an extremist. There are limits to everything. I doubt that even our forefathers would have approved of advertising and abuse such as spam and telemarketers. We don't allow people to shout into bullhorns at your house in the middle of the night, nor should we.
Re: (Score:2)
It's not an issue of free speech, per se. It's an issue of "are they allowed to use OTHER PEOPLE'S RESOURCES to do it". That's what it comes down to. If they want to post it on the web, dandy. But the moment they send that shit to my inbox, filling it needlessly, then it's wrong.
Re:I defend not what you say... (Score:4, Insightful)
when someone publishes a book, they have to pay to have the book printed and distributed. but when a spammer sends spam, they're not paying those bills, they are passing the cost along to other people against their objections.
using a first amendment defense to spamming is more like stealing someone's printing press, publishing your book with it, and then complaining about being prosecuted for stealing the printing press in the first place.
if it was really only the content of spam that was objectionable, then you're right, any true supporter of free speech would grudgingly accept spam. but there's a question of resources being improperly used, and people losing massive amounts of time and money against their will, all to pass along dubious messages from third parties.
Parent
Re: (Score:2)
Commercial speech does not get 1st amendment protection.
Re: (Score:3, Interesting)
No, I'm not gladdened by the sight of spam in my inbox. BUT...I'm also not terribly offended by it - I mark it as spam, train my spam filter, and continue without a second thought. It's just no
Re: (Score:3, Funny)
Geeze. "Congress shall make no law... abridging the freedom of speech, or of the press...". Is this spammer part of the US government?
When will you people get it through your heads that your "1st amendment rights to free speech" mean that the government can't stop you, not that you have the right to spend my money to express your speech.
I feel like I'm hearing Gomer yelling "citizen's arrest"...
In perspective: Text messaging (Score:3, Insightful)
Imagine if spammers sent you hundreds of text messages to your cell phone every day. Imagine you do not have unlimited text messaging. Lets say each message costs you $0.10 or so. People would be up in arms (hence why we don't see spammers doing this).
Your free speech ends where my money begins. Using my bandwidth and my energy costs me money, you have no freedom of speech there, it's not a public resource.
Pornography isn't protected speech? (Score:3, Interesting)
link to opinion (Score:3, Insightful)
The court did the right thing.
I submitted an article back in May about this case.
http://yro.slashdot.org/article.pl?sid=08/05/02/1910219 [slashdot.org]
The court's decision is here in pdf:
http://www.courts.state.va.us/opinions/opnscvwp/1062388.pdf [state.va.us]
Spam is bad - personally I use gmail and rarely see spam. But it's hard to write a statute that bans spam and doesn't ban slashdot and the internet in general.
Most of the anti-spam statutes out there are unconstitutional. Yay Va. Off to read the opinion.
above post is informative, flamebait.
Federalist Papers... (Score:5, Insightful)
The Federalist Papers were never forced upon unwanting recipients who had to pay for their receipt, they were made available to those who wanted to read them. There was choice involved.
The Federalist Papers were originally published in newspapers, so there's absolutely no parallel to spam. In modern terms, it would be a better comparison to blogs or websites. That can be done anonymously.
Big FAIL for the Court.
Email is not publishing (Score:4, Insightful)
That's just wrong. Email is NOT publishing. Comparing email to publishing the Federalist Papers is the kind of argument one would expect from a high school debater.
Sigh... (Score:3, Insightful)
This is a bad thing , just in case that's not completely obvious.
Should this guy go to jail? Yep. But first, rewrite the law to get it right. Identity theft is and should be illegal. If James sent even one e-mail that misappropriated someone else's e-mail address, then nail him on that charge. If he sent even one e-mail that advertises a business that is fraudulent, then nail him on fraud/conspiracy to commit fraud.
However, the provision in the law that prohibits sending an e-mail anonymously is not and should not be what delineates a legitimate e-mail from a bogus one. If we follow that logic, then any e-mail that doesn't include some narrow variation on first name and last name (first.last@..., firstInitialLastName@...,etc.) could be interpreted as anonymous. This is not a good thing.
Re: (Score:2)
Disheartening.
Re: (Score:3, Interesting)
Well apparently we are (or at least I am) trolls for distrusting our governments and wishing they'd extend us the same rights corporations seem to enjoy.
Maybe it's the part about shooting them. Anyone who thinks spammers deserve compassion is a fool, as the spammers would shoot any one of us in the face themselves if it earned them a nickel.
Re: (Score:3, Insightful)
Why? They just ignore it, use hidden caller id, and play you a recorded message.
If you "press 1" to ask for more information (like "who the HELL ARE YOU?" so you can file an FTC complaint) you've just opted in. If you "press 9" to "opt out", you haven't, but you still don't have either a name or a number so you can't file a complaint.
I get regular calls from "credit service" or something like that, talking about thi
Re: (Score:3, Interesting)
Actually, to really make your point, you should send out spam with the judges' return address, and the judges' phone number for accepting orders for the Viagra that you're selling. The decision doesn't merely uphold a right to spam; it upholds the right to spam and make it look like someone else sent it.
Re: (Score:3, Informative)
No, it doesn't. It upholds the right to send out certain bulk emails anonymously. The legislature wrote a law which prohibited that, along with a whole bunch of other things that perhaps could be permissibly prohibited, but since the law also prohibited things which were a matter of free speech, it was found to be overbroad. The judges also decided it was not within their scope to
Re: (Score:2, Funny)
Re: (Score:3, Interesting)
Re: (Score:3, Insightful)
so you wouldn't mind having your inbox filled with v1agr4 and penis enlargement ads if they didn't crash mail servers?
if someone crashes a mail server with a botnet that's a DDOS attack, but that's not why spam is problematic, and that's hardly an accurate description of what constitutes spam. most spammers aren't trying to crash e-mail servers--why would they? their spam messages wouldn't get through.
Re: (Score:3, Insightful)
Telemarketers, bulk mail distributors, and spammers, suck. But deal with them lawfully--there are legal tools available.
Their First Amendment protection is YOUR First Amendment protection.
You have the absolute right to say anything you please. You do not have the right to