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Court Strikes Down Anti-Spam Law

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Can someone explain to me how the Virginia State Supreme Court can declare its anti-spam law unconstitutional? I mean, I read what they are saying and I just don’t get it. How does anyone have the right to spam me when my e-mail is a private service I pay for? How does the spammer’s rights trump my rights? Legal experts can let me know where I am going wrong.

The Virginia law "is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails, including those containing political, religious or other speech protected by the First Amendment to the U.S. Constitution," Justice G. Steven Agee wrote.
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up next, the do-not-call list is unconstitutional for the same reasons........
 
Pretty much summed up, prohibiting free speech (a.k.a. spam) is unconstitutional, in the barest of forms. In this sort of legalese, spammers have the right to their 1st Amendment just as you have the right to ignore it and delete it.

I guess that's why I've always used a spam email address (when I sign up for freebies, or register with companies that I find somewhat uncouth yet I need their product) and a real address where only family and friends know me as.
 
Dark Shade said:
Pretty much summed up, prohibiting free speech (a.k.a. spam) is unconstitutional, in the barest of forms. In this sort of legalese, spammers have the right to their 1st Amendment just as you have the right to ignore it and delete it.

I guess that's why I've always used a spam email address (when I sign up for freebies, or register with companies that I find somewhat uncouth yet I need their product) and a real address where only family and friends know me as.
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Umm... ignore it and delete it? It wastes resources and time. Spam costs the community billions of dollars.
 
I'm not contesting that at all, it's a total waste, but through the eyes of the law you can't limit it because it isn't against the law to waste resources and time. :-\
 
But God forbid your email account gets "harvested" from within, happens all the time, and you personal account ends up on a hit list. My company has a great firewall and blocks almost 95% of all the crap.
 
Dark Shade said:
I'm not contesting that at all, it's a total waste, but through the eyes of the law you can't limit it because it isn't against the law to waste resources and time. :-\
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Others' resources and time, though?
 
Bull... this is not the government, this is a PRIVATE email address. Unless you put your email and OPT INTO it, then it is or should be illegal. You cant come into my house and start talking about Viagra and political crap. What, if someone starts talking about something it makes it ok how they are doing it because it is free speech?
 
Nope, no law that says wasting resources is illegal as long as it's not impacting something like the environment (like dumping nuclear waste in a river). If it was illegal to waste others' resources and times, people driving 15 in a 35 would be committing a crime.
 
Dark Shade said:
Nope, no law that says wasting resources is illegal as long as it's not impacting something like the environment (like dumping nuclear waste in a river). If it was illegal to waste others' resources and times, people driving 15 in a 35 would be committing a crime.
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So then hacking systems, ddos, and attacking systems should be perfectly legal right? According to your post.
 
MrTroy03 said:
Bull... this is not the government, this is a PRIVATE email address. Unless you put your email and OPT INTO it, then it is or should be illegal. You cant come into my house and start talking about Viagra and political crap. What, if someone starts talking about something it makes it ok how they are doing it because it is free speech?
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Federal law takes precedent over many private entities of the nation in many ways, having something 'private' just limits the public, not so much the government (FDA, FCC, etc.)

Commercials are a waste of time and resources on the TV, they practice free speech. Spam is no different.

I'm just playing the Devil's Advocate here, I by no means like spam, I think it's the worst thing about the Internet.
 
Ockie said:
So then hacking systems, ddos, and attacking systems should be perfectly legal right? According to your post.
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No, those are against the law because there have been precedents set that outlaw it, and those precedents have been deemed constitutional. I'm not quite hep on the litigation regarding hacking and ddos attacks, but I believe they have some grounds in the fact that it's a vehicle of trespassing and vandalism, whereas spam has been found to not be such vehicles.
 
Commercials are a waste of time and resources on the TV, they practice free speech. Spam is no different.
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There is a stark difference, though. With the television example, you agree to be subject to the advertising of the 'free' channels, so said channels can recover the costs and possibly profit. Those receiving spam, on the other hand, don't ask for their purchased storage space and bandwidth to be utilized illegitimately.
 
Here's my take (btw I am not a lawyer, just a college student taking a few poli sci classes this semester)

Spam itself is legal, just like commercials are. It's just text, advertisements, marketing, all legal vehicles of business. The difference between spam and commercials is the METHOD of which they are brought to you. Business entities pay cable/satellite/broadcast companies money for airtime, and they have to follow the rules and regulations of the FCC and the channel's terms of service. So every time you see a political ad or Viva Viagra, someone paid a company to put that on the air and they did it through the legal process.

Spam does much the same without the overhead of cost (well, not a lot of cost, email is free whereas commercials are not, but hardware and bandwidth cost money) and they (generally) follow FCC and federal regulations of content, and as long as they keep in line with what the law allows them to do, they will be able to spam everyone they can get ahold of. To quote a cliche, as long as the spammers don't yell FIRE!, they can exercise their right to advertise.

You don't have to agree to anything, I disagree with kids around campus giving out Vote for Obama flyers but there's nothing illegal going on.

I know in reality, unnecessary spam should be put to a stop immediately, but the issue with American politics and law (and some international law) is that if you want to stop something, you have to tread lightly on the rights of the individual and the entity (business), otherwise something like this is deemed unconstitutional, the spammers rejoice and we're back at square one.
 
how come in america when it comes to rights and freedoms.. only the bullshit freedoms get defended vigorously... i mean the constitusion was basically scrapped with anti-terrorism laws.. but nah thats ok.. the laws in place to protect the innocent.. completely unneccesary... the right to spam people.. i'll take this battle to my grave!! i must be able to spam!!
 
Quick! Someone find out that Justice's e-mail address and mass spam Viagra and male enhancement e-mails and see how he likes it.
 
Yeah the Constitution is more or less an economic document, meant to protect the rights and freedoms of the rich and (at the time) white voting class, a.k.a. business entities. It's been amended 27 times for everyone else (1-12thfor everyone, 13th, 14th and 15th for the minorities/blacks, 19th for women, 26th for 18-year olds, etc)
 
Jester1550 said:
up next, the do-not-call list is unconstitutional for the same reasons........
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I've got a friend who works for a major spammer and the "do not call lists" are actually for sale, if you know the right people. He's worked with the lists himself, he tells me. He's told me quite a few stories that would really make you say WTF, but his company navigates the gray area and stays legal.

All that said, personally, I think a simple solution to this problem that could be done TODAY would be the following: require all email to be sent out to be sent with a unique digital certificate - and any email not containing the sent certificate would simply be discarded at the server. This would solve a few problems:

1. Accountability. You cannot simply sent out bazillions of emails from a bazillion random email addresses. Your email address would have to be absolutely, unquestionably, be linked to a legal entity - whether it be a human or a corporation. Very easy prosecution for abusers now...

2. No email from companies/people not participating in the global certificate program - people will argue that legitimate email from people outside countries participating in the certification program would be discarded, and they'd be right. But I *highly* doubt any countries would simply alienate themselves from the global market/communications for long, unless they were already in the process of doing so, such as china etc (but to limited degrees, obviously).

Personally, I've NEVER, EVER, understood why anyone would ever need an anonymous email. ONLY people who are using mail for wrongful acts would need it... problem solved...
 
Dark Shade said:
I'm not contesting that at all, it's a total waste, but through the eyes of the law you can't limit it because it isn't against the law to waste resources and time. :-\
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maybe in your country's law... but not in everybodys... but spam (that mainly originates from the states) is spread all over the world... not just to americans.. the american constitution has no bearing past your borders but it cost lots of money to the entire world... and living in a country where internet is 10x the cost and nowhere near the speed of your country this is an even more significant problem.. there is no way america would accept bills from other countries based on the cost to deal with an unwanted and mainly american-based problem..
 
I don't buy the spam-commercial analogy. There are better analogies.

Spamming with faxes is illegal (at least in most jursdictions), as is cold-calling cel phones. I think private email accounts are much more analous to these technologies than your tv because of the cost - you pay for fax line, pay for fax paper, pay for your cel phone time, and you pay for your email storage (in one way or another - my company email domain sure ain't free!), aka - you have a right to not be spammed.

Here's my other argument against the idea of no cost impact by spam - many companies really tighten up their email firewalls in large part because of spammers (viruses being the primary factor obviously). This often prohibits legitimate business emails from getting through - this costs time and money.

Just like the no-call list, we citizens will have to get a no-spam list put together and the respective legislation.

I think the reason this was struck down is simply because of the current generation of judges are not in touch with technology. Once you have judges that had email as kids and have dealt with spam for a decade or two or have lawyers that are apable of equating email to faxes and cel phones, then we should get this fixed.

Until then, I'll keep working on my "denial-of-service-attack-of-the-spammers" program. We hope to go into beta soon. ;)
 
gaspah said:
maybe in your country's law... but not in everybodys... but spam (that mainly originates from the states) is spread all over the world... not just to americans.. the american constitution has no bearing past your borders but it cost lots of money to the entire world... and living in a country where internet is 10x the cost and nowhere near the speed of your country this is an even more significant problem.. there is no way america would accept bills from other countries based on the cost to deal with an unwanted and mainly american-based problem..
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You are quite correct, and it's up to each country to appeal to these types of governments (United States in this excerpt) to keep in mind that this affects everyone, it's not like spam stops at the border and turns around. Otherwise everyone will sit on their hands and watch the spam come in.

I think in order to deter something like this, you need a global movement.
 
JRS said:
Here's my other argument against the idea of no cost impact by spam - many companies really tighten up their email firewalls in large part because of spammers (viruses being the primary factor obviously). This often prohibits legitimate business emails from getting through - this costs time and money.
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I didn't mean there was no cost impact, I was correlating commercials to spam when it comes to money spent on the marketing of each. Commercials cost a lot of money (Super Bowl ads, anyone?) whereas someone sending spam out to a hundred million people in a week is almost nil out of their own pocket, so money is not a deterrent to spammers.
 
Dark Shade said:
You don't have to agree to anything, I disagree with kids around campus giving out Vote for Obama flyers but there's nothing illegal going on.
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Because that is public property...try that shit on farmer Joe’s land and see how fast you get filled full of legal buckshot for trespassing ;)
 
MPAA and ISPs can band together to slow bittorrent by capping internet.. but they cant re-arrange their charges to incorporate a reasonable fee to send (not recieve) an email... a very small fee multiplied by hundreds of thousands of emails = big fee... and if you say that would affect businesses that send a lot of emails.. well conversation is all instant messenger between companies these days anyway... and any more certified emails like invoices or reports etc etc are all cash cows and a small fee from these sorts of things is really irrelevant.. but sending millions of emails for no reason.. that has to COST THE SENDER...
 
JRS said:
I think the reason this was struck down is simply because of the current generation of judges are not in touch with technology.

Until then, I'll keep working on my "denial-of-service-attack-of-the-spammers" program. We hope to go into beta soon. ;)
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Yup, wait until a spammer's "rights" to free speech costs the judge actual $$ for bandwidth...

I was always raised that I have the RIGHT to do whatever I want...until it steps on someone else's rights. Good rule of thumb, too bad the court doesn't think so. :(
 
Why don't ISP's setup a soft-limit for sending? You get X-amount of emails a month included with your package, if you go over you pay a penny for Y-amount more. Any regular user sending over X-amount emails in a month is probably a business, so business accounts are the only ones immune unless they are found to be abusive, then they have email rights revoked temporarily or permanently. Abuse would be a hard number like Z-amount.

I'm sure this has been thought of, but the only real deterrent to spam is cost involved. The d-bag in this case did it out of his house, can't imagine him being able to spend a ton of cash if you are so poor that you have to spam advertisements all over the web.
 
Good luck getting people to pay for something they are getting free. Even if it's 1c per 10 emails, people won't want to pay it. The real solution is linking email accounts to humans or corporations, basically any legal entity.

Simply get rid of anonymous email, and have servers discard anonymous email directly at the servers. Then it's clean-cut to prove people spammed.. I mean if 100,000 emails are sent from 1 email address, it's CLEAR that that person is a spammer. And in the VERY small legitimate cases where that person wasn't spamming, it'd be crystal clear - 100k emails with all different content, no need to even bring it to a court, it would be very obvious...
 
I think what people are missing is that spam isn't just advertisement. It's often trying to scam people out of their money, or distribute a virus. I think the "free speech" argument is ridiculous. Advertising should hardly be protected speech, least of all when it costs the consumer without their consent.

An advertisement on TV is necessary to keep television shows funded, and the only people with the money to put one up are people with mostly legitimate products. There are exceptions to that of course, but that's the general idea. There are TONS of existing limitations on advertisements that evidently don't clash with "free speech". There's the Do Not Call Registry for one, which to me seems like it limits unsolicited advertisement in the exact same way as an anti-spam law. There are laws against spamming faxes, doing ANY advertising to a cell phone, and so on.

My view is that email is identical to forms of communication that are already protected from unsolicited advertising. It is not justifiable to me that the burden should be placed on the recipient to filter, delete, or block the advertisements. I believe the latest statistic is that 98% of e-mail traffic on the Internet is spam. Filters on peoples inboxes does not solve the problem, just hide it. The only way to stop it is to make damn sure its illegal in every region, and then ruin anyone who spams. I'm not sure about jailtime for some computer offense, but certainly you could ruin them financially.
 
The article says he sent up to 10 million emails a day through an AOL server in North Carolina. (Who knows what they mean by AOL server ... AOL SMTP server or was AOL simply his ISP??).

Many domains block incoming email from known dynamic IPs (cable/dsl/etc). Specifically this is done through Spamhaus. It is possible to get an exception, but they constantly monitor with spam traps to prevent widespread circumvention. I think this is mostly to avoid botnet spammers, but also prevents someone from simply firing off emails from their own SMTP server.

As far as the legality of spam, well I'm not sure as it relates to the phone/fax/snail mail precedents. Are unsolicited phone calls criminal offenses or civil offenses? I can see spam being more of a civil suit type of thing rather than a criminal suit... this guy was facing felony charges.

On a related note, I've been getting these taped phone calls on my cell phone, mostly about direct tv. What gives with that??
 
Sounds like they're saying it's illegal to block organization's bulk emails, but it's safe to block corporate marketing. This is exactly how the do not call registry works, and the law should be appended to do the same to marketing spam without affecting organization awareness emails.
 
I still find it amazing that sending emails can be something you'd end up in prison for, I really do. Most folks just cannot see this from an objective point of view, at just how fucking ridiculous it is to go after spammers. You might as well go after everyone that sends you junk mail - hell, instead of thinking you can win $10 million from Publisher's Clearing House, why not just fuckin' sue 'em for $20 million because you're getting unsolicited mail at your home address.

Really... this shit has gone too far in our society. People need to STFU about it and stop whining and just delete the spam. Billions of dollars... I simply don't believe it for a second. Real physical mail, billions? That I can see. One email typed on a machine then duplicated a few bazillion times if needed? Billions of dollars? Nope, ain't gonna believe it.

THIS IS NOT WHAT GOVERNMENT IS SUPPOSED TO BE DOING, PERIOD.
 
All of that is fine and good until spam starts to literally incapacitate people's emails, infect with viruses, and pass around fraudulent opportunities.
 
Everyone is forgetting the relevant info missing. WTF is this judge's email address and those of his immediate family. I have lots of friends who want to show him how to enlarge one of his digits as well as concerned friends who want to move their money out of locales unknown in Africa to the States.
 
One other thing (couldn't edit my previous post), I equate anti-spam laws with the nuisance laws we have. Sure you have a right to free speech but your 1st amendment doesn't guarantee you the right to scream loudly at me and annoy me (spamming my email address) even if you're doing it from the privacy of your home. That's how we ensure noisy neighbors don't affect the quality of life for everyone else on the block during the day or especially at night.
 
Think of the argument against shouting "FIRE" in a crowded theater. That form of speech is illegal and not covered under the first amendment. The reason for this is simple, any form of speech that wil directly incite violence is not covered by the 1st amendment. So all we need to do is, the next time you get a spam mail about Viagra, someone needs to take one for the team and go to a local pharmacy and just totally fu** over that section. This will be an act of violence directly caused by a form of speech, thus making it illegal. we need to spam back with violence.:D This of course is meant as satire, but these lawyer types need to get up one morning and think "oh wow there are other forms of logic, like being an a**hole is just plain wrong and shouldn't be protected" there is no slippery slope here, because we are not just saying some forms of speech are wrong, we are saying that pissing people off is, which it is. This reminds me of the Nazi march on the town of Skokie,IL which the ACLU fought for the nazis, but of course they were allowed to go on, but what is going on here. we are supposed to be civilized, yet we keep protecting scum.

I am a resident of VA by the way and this pisses me off enormously. Time to spam my representatives, seeing as its now legal. and as to the comment on a DOS attack, of course it is now legal, because I am sending a message of 1s and 0s which is free speech of course because I like to communicate in binary a lot, so much servers just think I am talking to much. It will cost the server downtime and money, but so does sending me an e-mail, which is comprised of the same type of data as anything else on the internet.
 
Did you hear the defendant's side? Did you hear the plaintiff's case? Oh, no? With that in mind, I think I'll side with the judge who is an expert on law. Besides, I'd rather err on the side of allowing too much in favor of free speech, than starting to create new limits on it.
 
Dreaz said:
With that in mind, I think I'll side with the judge who is an expert on law.
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That gave me a good LOL. There were nine judges, they were sharply split 5-4. Obviously the "experts" disagreed with each other. Which judge are you siding with sir? ;)
 
Steve said:
Yup, wait until a spammer's "rights" to free speech costs the judge actual $$ for bandwidth...

I was always raised that I have the RIGHT to do whatever I want...until it steps on someone else's rights. Good rule of thumb, too bad the court doesn't think so. :(
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I don't agree with his analogy on it but to me it's like the mailman delivering mail to your house... In the mail you get advertisements for credit cards, loans, etc...

I don't need anymore of these just as I don't need spam in my e-mail but it's not illegal, they aren't hijacking our e-mail accounts to perform these duties and those who do are committing a crime... But there is a difference...

The day that people can no longer deliver you junk mail at your physical address due to it being illegal is the day that e-mail SPAM will also be considered illegal...

Too bad freedom of speech tends to trump most logical legal decisions...
 
Steve said:
Yup, wait until a spammer's "rights" to free speech costs the judge actual $$ for bandwidth...

I was always raised that I have the RIGHT to do whatever I want...until it steps on someone else's rights. Good rule of thumb, too bad the court doesn't think so. :(
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The funny thing is, the court sided with the spammer on the basis that he has a right to anonymous speech, yet he wasn't doing this anonymously, he was doing this through millions of fake IDs. He didn't send the email as "Publius", he sent them as "agkjewr4532@aol.com" at one time, and "fjhywev@aol.com" at another. His speech was about as anonymous as a fake ID used to buy beer, or a fake name on a check. Both of these "anonymous" forms of speech are done to subvert a system put in place by someone with a legal right to do so. Once he did that, his speech was no more protected than those people using fake IDs or fake checks.
 
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