Virginia court overturns anti-spam law, compares penny stock schemes to Federalist Papers
Do you make a living asking children if they would like to enlarge their penises? Virginia's got your back:
The Virginia Supreme Court today invalidated the state's "anti-spam" law, designed to prevent the sending of masses of unwanted e-mail, by saying the law broadly violated the First Amendment right to freedom of speech, in particular anonymous speech.The ruling, arising from the Loudoun County criminal prosecution of Jeremy Jaynes of Raleigh, N.C., was also remarkable because the Supreme Court reversed itself: Just six months ago, the same court upheld the anti-spam law by a 4-3 margin. But Jaynes's attorneys asked the court to reconsider, typically a long shot in appellate law, and the court not only reconsidered but changed its mind.
Jaynes sent countless spam emails through AOL's servers in the state, using false identifying information. The prohibition of that last characteristic of spam--done to make it impossible to ID the spammer--is among the problems the Virginian supremes found in the law. In its verdict, it wrote: "were the 'Federalist Papers' just being published today via e-mail, that transmission by Publius would violate the [current Virginia] statute."
Here's an example of what's being justified due to its principled similarity to Alexander Hamilton's anonymous philosophical advocation for the American state:
Source [Wapo]
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Well, waddya expect. SNAFU. (Situation normal, all fucked up).
Oh, come on. Are you trolling on purpose? The court did not say that spam was "justified" by its "principled similarity" to the Federalist Papers; rather it is saying that the law was *unjustified* in that it would make publishing said letters today illegal. The spammer is getting away with it because the state made a crap law.
Sounds like a certain judge i know would be interested in Penis Enlargement...................
....very interested.
Do we really need laws against spam?
Install a damned spam filter and be done with it.
Stop trying to violate the end-to-end principle because of your petty inconveniences.
Anti-spam laws (and the MAPS RBL) are way too close to tiered Internet, the Golden Shield Project, and other government regulations of the use of computer networks than I'm ever going to be comfortable with.
#3 Zuzu. Yes, there are better ways to deal with spam than courts and jails. Like filters.
Another is be careful who you give your email address to.
Another is a whitelist with a challenge-response so new or old friends can get through.
Another way would be to set up your outgoing mail as encrypted RSS feeds that only the interested recipient would subscribe to.
So many ways, and yet to a lot of people, outlawing spam is the first thing that comes to mind. It's like government has become a misunderstanding about how things get done. Kids should read RFCs in civics class.
By the way, end-to-end doesn't solve the problem ISPs have with traffic. But then, SMTP is not an end-to-end system, is it?
I thought it was fairly established law that advertisement and business speech did not enjoy the same protection under the first amendment? False advertising and deceptive practices and such.
One problem here is that the appeals court, on its reconsideration, seems to have completely confused forgery mail headers and senders with anonymous transmission, due to a misunderstanding of the technical issues. There's a huge difference between using an anonymous remailer or TOR router, for instance, and sending with other people's domains and IP addresses.
The Federalist Papers were published as "Publius"; they weren't published using some other person's name and return address. This makes the whole comparison bogus.
Clifton, If I want to sign my e-mail George W. Bush, I may. I know it's not me. You can be assumed to know it's not me.
I'm with Ifriit - The state wrote a crap law. Spam is a minor problem which is best addressed without wasting the limited resources of the state.
I'm all for prosecuting fraud, but this method - prosecuting those who mass-market (that's how they see themselves) - is not the way to do it.
It's like writing a new law to say that while not stopping at stop signs is already a misdemeanor, rolling through them at 3 mph is to be considered a felony. It's a bad simile, but I'll stick with it.
#5, you're correct. However the problem was that the Virginia law made no distinction between commercial and protected speech.
This is a good thing. I'm surprised anyone on Boing Boing wouldn't be happy about it.
Who is buying crap advertised in spam? they are the ones who should be locked up.
You-all do understand that 80-90% of all net e-mails are spam? We need to rename the internet. Let's call it spamnet!
As for the traffic "problem" of ISPs, the solution has always been to continue to overprovision bandwidth, forever, to meet geometrically increasing demand. Bandwidth scarcity is an artificial construction, based on leveraging the universal service monopoly privileges for rent seeking rather than profit seeking.
Agreed, completely.Why is that a problem?
...Hey! I didn't know John Belushi was on the $10.00 bill!
"Do we really need laws against spam?"
...What we need are laws against spam with *teeth*. Every spam costs the spammer $500,000 or a year in jail at hard labor. If the spammer is located in Nigeria, you nuke the place. Guaranteed if spam became a felony akin to treason or murder and we were willing to prosecute and enact justice rapidly, it would drop to a trickle.
...And no, I don't buy the "Federalist Papers" argument. Those guys weren't spammers trying to sell scams. That only desecrates our heroes and their intentions by equating the actions of a scumbag spammer with the Founding Fathers of this nation. The Virginia Supremes apparently are too inept to realize this.
No, actually, see, the Virginia Supremes didn't think a scumbag scammer should be equated with the Federalist Papers. They thought a law which would, in addition to barring spam, also bar the anonymous distribution of unsolicited political speech such as the Federalist Papers is unconstitutional.
To use a hackneyed example, if a law barred both yelling "Fire!" in a crowded theater and also barred anonymous political speech, even the false-fire-shouter cannot be prosecuted under it.
The problem lies with an ill-crafted law, not with this decision, and the only thing worth lamenting is that the Virginia high court required two tries to get this right.
The problem of spam...
1. We're paying for the spam. Think about that for minute; 80-90% of our internet e-mail charges are to transport spam.
2. Eventually, we're going to get to the point where the old protocols will be of no value. What replaces them will be closed networks.
Want your p3n1s bigger? women will moan for moar!
- George Washington
#14
It's a problem because it means that email infrastructure has to be 5-10x larger just to deal with it. That's a lot of money. If you think that cost doesn't get passed on to you, think again. And that's with all the blocklists, laws, and other restrictions in place. Spam could consume far more. Filtering requires quite a few resources in and of itself. It's actually more resource intensive than simply accepting the mail, but then the cost becomes human time rather than CPU time. "Solutions" like challenge-response cause even more damage as they generate challenge mails to anyone whose address has been forged by a spammer. Try sorting through a box of 1,000 mails, including challenges from people you've never emailed to find 10 good mails.
Whether the cost is paid in time or in hardware, it's no longer a petty nuisance. Hasn't been for many years.
And that doesn't even get into the whole botnet issue...
Furthermore, 5-10x larger bandwidth for email is, what, equivalent to a few 4-8GB HD movies? I move terabytes of legitimate data every month on my fiber-to-the-curb uplink (at 15Mbps symmetric). My hunch is that spam is a drop in the bucket per capita by comparison.
I use bayesian spam filtering with great success. It's really really easy to ignore all spam this way.CPU time is cheap (and becoming exponentially cheaper thanks to Moore's law). Bandwidth is kinda cheap, and would be far far cheaper if telecoms ceased their rent-seeking and failure to invest in upgrading their infrastructure. If there were real competition for running a fibre optic line into your home or business, we'd have what South Korea has: 100Mbps for $15/month.
"Wasting" computer resources (e.g. CPU cycles, hard drive space, network bandwidth) is what drives innovation for maximizing those aforementioned human cognitive resources.
Simply put, demand follows supply.Actually, the gaping hole, as I understand it, is the comparison of anonymous published work with the imposition of sales literature.
Were Hamilton to stroll about, brush & bucket of glue in hand, and plaster, unsolicited, the Federalist papers on resident doors and windows, necessitating action to remove them on the part of the homeowner, then such a comparison might hold some validity.
However, to equate offering, and making available through publication, a political solution in contrast to imposing a possible trojan horse that must be delt with on the part of the recipient is a fairly ignorant display on the court's part.
Example: If I began anonymously sticking in mail-slots and doormats packets of the Federalist Papers with a white powder that may, or may not be anthrax, would I be protected by this law? I think not. The homeowners didn't ask to assume the risk and the original publication of Hamilton's treatise didn't make such an imposition on the uninterested.
Hours upon hours are wasted yearly dealing with unwanted solicitations. Yes, there should be a law against this tedious, dishonest nuisance.
If you want to make an honest analogy, spam is like all of the menus that get loaded up in our mail or under our door. i.e. "junk mail"
However, just as spam is incredibly cheap to automate its composition and delivery, so too is it incredibly cheap to implement and use a spam filter in your Mail User Agent (MUA) to ignore spam. Mozilla Thunderbird includes one by default.
Explain how laws are effective in cyberspace, which is effectively outside any jurisdiction (because individuals have a choice of multiple favorable jurisdictions for any activity), to solve this problem.Government legal systems are not magic, or cheap. They are expensive and unwieldy to actually enforce. Trying to use laws to mitigate the nuisance of spam is like trying to use a tactical nuclear weapon instead of a flyswatter against the nuisance of flies.
Trojans are outside the scope of the spam debate, and are more a matter of computer security.
No, they aren't if you are the recipient of an unsolicited email or ad. The average person does not know if the spam contains a virus or not, hence my comment about a white powder which may or may not be anthrax. A valid point.
If you want to make an honest analogy, spam is like all of the menus that get loaded up in our mail or under our door. i.e. "junk mail"
Again, no, because the menus are fairly easily examined before they are brought into the home. Spam, on the other hand, could contain any number of codes which the average consumer has no idea how to remove or undo.
Add to that the fact that spam goes to great lengths to appear as something other than spam, just as junk mail appears as "You're A Winner," when in fact it is a misleading attempt to deceive. (Remember the PCH & AFP lawsuits that cost the companies millions for false advertising.)
Explain how laws are effective in cyberspace, which is effectively outside any jurisdiction (because individuals have a choice of multiple favorable jurisdictions for any activity), to solve this problem.
Apparently, Jaynes found the law to be effective until VA screwed the pooch. It is a deterrent to use both a spam filter and a legal discouragement for participating in spamming.
Otherwise, according to viewpoints such as yours, there's no need to have such legalities as a Do Not Call list as long as people want to keep paying for Caller ID and listening to their phones ring all day long. No thanks.
Umm, and before presumptively correcting my perfectly valid example, understand it first.
#21, bandwidth may be cheap, but nothing else is. A large email cluster for an ISP can run to the millions of dollars worth of servers, databases, and network attached storage. All of which consume electricity. (Twice, once to drive the processors and spinning disks, once to pump all that heat out of the facility.) The power grid is already a limiting factor on many data centers. Multiplying that consumption by a factor of 5-10x would require significant upgrades to physical facilities and infrastructure.
Consider also that at large scales, hardware fails at a fairly constant and predictable rate. A large email system is a living creature that takes in a constant supply of new servers and excretes dead ones. This all takes more energy and physical resources, and results in pollution. Multiply those quantities by 5-10x as well.
Most people think spam is "cheap" because they only see it at the level of a small business or home system that has plenty of surplus power. Spam at that level still costs, but it's down in the noise. You only get a real sense of the magnitude of the problem when you see a large email system that aggregates those costs in one place.