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1st Trial Under California Spam Law Slams Spammer

timothy posted about 4 years ago | from the righteous-win dept.

Spam 126

www.sorehands.com writes "In the first case brought by a spam recipient to actually go to trial in California, the Superior Court of California held that people who receive false and deceptive spam emails are entitled to liquidated damages of $1,000 per email under California Business & Professions Code Section 17529.5. In the California Superior Court ruling (PDF), Judge Marie S. Weiner made many references to the fact that Defendants used anonymous domain name registration and used unregistered business names in her ruling. This is different from the Gordon case, where one only had to perform a simple whois lookup to identify the sender; here, Defendants used 'from' lines of 'Paid Survey' and 'Your Promotion' with anonymously registered domain names. Judge Weiner's decision makes it clear that the California law is not preempted by the I CAN-SPAM Act. This has been determined in a few prior cases, including my own. (See http://www.barbieslapp.com/spam for some of those cases.)"

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126 comments

Missing item... (3, Funny)

LostCluster (625375) | about 4 years ago | (#31530230)

Uhm, you're supposed to post an web or e-mail address link so people can reach you in the summary.

I have to save the spam? (1)

mrmeval (662166) | about 4 years ago | (#31530240)

For 1k per I can sure as hell afford a petabyte array.

Re:I have to save the spam? (1)

DarkKnightRadick (268025) | about 4 years ago | (#31530624)

Maybe I should move to California. I get TONS of spam. I could pay off all my debt and get my super-awesome computer. (:

Re:I have to save the spam? (1)

Fred_A (10934) | about 4 years ago | (#31533778)

Maybe I should move to California. I get TONS of spam. I could pay off all my debt and get my super-awesome computer. (:

My thoughts exactly, I'm sure that with about $12000/month I could go by, even in California.

OTOH, there will probably be a sharp increase in prices in that state with all the new Spam millionaires (oops, I left my email in a public forum again).

Nice (1, Funny)

Anonymous Coward | about 4 years ago | (#31530256)

This is what should happen for all SPAMMERs. Once this happens to everyone, there would be thicker lines drawn between what is SPAM and whats not. Organizations that do SPAM to provide their advertisements for FREE, even the ones that have the UNSUBSCRIBE button should start getting this kind of penalties.

Re:Nice (1, Informative)

Anonymous Coward | about 4 years ago | (#31530440)

THANK YOU for using ALL CAPS so much. It makes your message so much more easily UNDERSTANDABLE.

Yes, it does. (1)

gbutler69 (910166) | about 4 years ago | (#31530772)

YES! Where he used caps implies emphasis in speech. People who complain about this don't know how to read. They can't read something and HEAR the speech emphasis in their mind. So they complain and look stupid.

Re:Yes, it does. (1)

twidarkling (1537077) | about 4 years ago | (#31530926)

My argument is that the emphasis is placed on the wrong words. It'd carry more force like this:

This is what should happen for ALL spammers. Once this happens to everyone, there would be thicker lines drawn between what IS spam and what's not.

Re:Yes, it does. (0)

Anonymous Coward | about 4 years ago | (#31531156)

No no... You misunderstand. The OP was clearly referring to actual SPAM, which is an acronym (for SPiced hAM) and should therefore be capitalized. I think they may have misunderstood TFA though... And I shudder to think what they meants by "doing" SPAM.

Re:Yes, it does. (1)

twidarkling (1537077) | about 4 years ago | (#31531666)

Wait, SPAM actually stands for something?

And thank you for that disturbing visual. I may never recover.

Re:Yes, it does. (2, Informative)

Teancum (67324) | about 4 years ago | (#31531868)

Actually, the AC poster was wrong. It stand for Shoulder Pork and hAM. Or something like that, there have been multiple backronyms that have been applied to the word, even by Hormel.

The name came from a contest that was held in the 1940's on the behalf of Hormel by a Madison Avenue (their office was literally on Madison Avenue in NYC) marketing firm, and advertised on the weekly comedy radio show performed by George Burns and Gracie Allen. From several thousand entries submitted, the name SPAM was selected as suggested by a housewife who listened to the radio show and sent in an entry. I lost track of the exact name of this lady, but it wasn't even a Hormel employee that suggested the name in the first place.

As for how the e-mail variety of spam got its name, that should be rather famous too, but I'll leave that to others if you are ignorant of that history.

Re:Yes, it does. (1)

daveime (1253762) | about 4 years ago | (#31532580)

Well, there's SPAM egg sausage and SPAM, that's not got much spam in it !

I don't like SPAM !

Sshh, dear, don't make a fuss. I'll have your SPAM. I love it. I'm having SPAM SPAM SPAM SPAM SPAM SPAM SPAM beaked beans SPAM SPAM SPAM and SPAM !

Baked Beans are off !

Re:Yes, it does. (1)

digitig (1056110) | about 4 years ago | (#31531224)

YES! Where he used caps implies emphasis in speech. People who complain about this don't know how to read. They can't read something and HEAR the speech emphasis in their mind. So they complain and look stupid.

People who write like that don't know how to format stuff here, so they look stupid.

One jurisdiction down, how many to go? (1)

LostCluster (625375) | about 4 years ago | (#31530278)

Well, it seems like California got one right for once. Now, how many more places need similar laws to solve this worldwide problem?

Re:One jurisdiction down, how many to go? (1, Funny)

Anonymous Coward | about 4 years ago | (#31530384)

Just one... Kentucky [slashdot.org]!

It's Not Going To Make A Difference (2, Interesting)

WrongSizeGlass (838941) | about 4 years ago | (#31530304)

I know the $1,000 per e-mail is supposed to be a deterrent, but no one is ever going to see any real money from this guy. Who keeps the 'spam'? How can they prove they received it once it's gone?

This guy is going to declare bankruptcy as soon as his fine is handed down and the only one who's going to get any of his cash is his lawyer.

Re:It's Not Going To Make A Difference (1, Informative)

Anonymous Coward | about 4 years ago | (#31530362)

In many states, fines that are a result of court judgements against you cannot be discharged in bankruptcy court. Otherwise, you could just rack up ungodly amounts of judgements against you, never pay them, go to bankruptcy court, wash, rinse, repeat as often as desired.

Re:It's Not Going To Make A Difference (1)

beelsebob (529313) | about 4 years ago | (#31530536)

That is kinda the idea of bankruptcy – once they've taken everything from you, you should be allowed a fresh start.

Re:It's Not Going To Make A Difference (4, Informative)

DarkKnightRadick (268025) | about 4 years ago | (#31530596)

Federal student loans and, at least in my state (afaik), court judgments are exempt from bankruptcy declarations.

At least for judgments against you, that's actually good. You shouldn't get a fresh start if you have a court-ordered judgment against you.

Re:It's Not Going To Make A Difference (-1)

Anonymous Coward | about 4 years ago | (#31530942)

And once you've lost all your money, you're supposed to live while eking out the judgment how?

Re:It's Not Going To Make A Difference (2, Insightful)

Anonymous Coward | about 4 years ago | (#31531236)

by getting a job.

Re:It's Not Going To Make A Difference (0, Flamebait)

Khyber (864651) | about 4 years ago | (#31532400)

Fat chance with many employers requiring a goddamned credit check before giving you a job.

God i swear you people are so ignorant of reality.

Re:It's Not Going To Make A Difference (2, Insightful)

shadowfaxcrx (1736978) | about 4 years ago | (#31533082)

"I guess you should have thought of that before you sent deceptive spam to the whole world."

In general, if you're unable to pay your judgment in a lump sum, the court will work out a payment plan for you. They'll garnish a set amount out of each paycheck (usually depending on what you can reasonably afford) and give it to the plaintiff. Sure, you might be paying $50 every two weeks until you die, but. . . that's where my first sentence comes in.

Re:It's Not Going To Make A Difference (1)

Sarten-X (1102295) | about 4 years ago | (#31530652)

Who is 'they'? Is it the judicial system, which (ideally) only fines people who have done something wrong? Is it the creditors, who are only loaning you money, and just want it back? Going into bankruptcy means that not only have you exhausted your own supply of money, but generally you've exhausted what other people are willing to lend you. You should not be allowed to just forget all your old debts, any more than a bank should be allowed to forget that you made deposits.

Re:It's Not Going To Make A Difference (5, Informative)

Skapare (16644) | about 4 years ago | (#31530902)

Indebtedness that is the result of certain criminal acts is not usually allowed to be discharged in bankruptcy. If you destroy someone else's property, then declare bankruptcy after being convicted of the crime, you will still owe THAT debt. The risk of not being paid back is supposed to be burdened only by those specifically choosing to do business with the party that might declare bankruptcy. However, this matter still has to be raised in the bankruptcy court. If you are owed money for a criminal act, and the debtor files bankruptcy, and you just sit and do nothing, it could be discharged, and it might not be possible to re-open the bankruptcy (if you knew about it).

Whether spamming falls under this is the big question. I believe there is no case law to test it.

For more information, see "Chapter 7 - Liquidation Under the Bankruptcy Code [uscourts.gov]". The relevant paragraphs are near the end, just above "NOTES".

Re:It's Not Going To Make A Difference (1)

nextekcarl (1402899) | about 4 years ago | (#31531266)

If you could do that it would cripple civil lawsuits. Then we'd have to make even more things criminal to deter people so they could be punished (by throwing them in jail, which you can't do with a civil lawsuit).

Re:It's Not Going To Make A Difference (4, Funny)

MillionthMonkey (240664) | about 4 years ago | (#31530514)

I'll save someone some time- actually, a lot of people a lot of time:

... (x) legislative ...

...

(x) No one will be able to find the guy or collect the money

...

Re:It's Not Going To Make A Difference (2, Insightful)

PRMan (959735) | about 4 years ago | (#31530920)

He had to find the guy in order to sue them. That part is done.

Re:It's Not Going To Make A Difference (1)

Kjella (173770) | about 4 years ago | (#31531132)

Onw - 1 - person being arrested for murder does not mean murder is "solved" for all time. The only real metric is a persistent lowering not caused by underreporting. That is far more complicated than most companies think.

Re:It's Not Going To Make A Difference (5, Insightful)

SpeedyDX (1014595) | about 4 years ago | (#31530714)

I didn't RTFPDF yet, but here are my preliminary thoughts. I understand the rationale that the fine of $1000 per email is that it is punitive, but why $1000? $1000 per email seems like an awfully exaggerated fine. Didn't we agree that fines or other cash penalties should be at least roughly tied to the amount of harm done? For example, sharing a $1 song should not amount to thousands upon thousands of dollars in fines. Likewise, a single spam email that costs the victim almost nothing but time, annoyance, and/or fractions of a cent in bandwidth costs probably shouldn't warrant a $1000 fine.

Now if a scam email actually defrauded someone of money (the victim could either be the person spammed or an ad agency), the punishment should be relative to the amount defrauded, plus some significant punitive penalty.

If we think that outrageous fines are unjust and unwarranted, shouldn't we apply this rule across the board? Figure out the actual damages and go from there instead of just slapping a $1000 price tag on each email. Doesn't that make more sense?

Re:It's Not Going To Make A Difference (5, Insightful)

CannonballHead (842625) | about 4 years ago | (#31530856)

No, we shouldn't, because we really dislike spam - thus we feel that we can adjust our punitive damages required to fit our dislike. On the other hand, we like illegal file sharing, therefore we feel that punitive damages there should be zero.

At least, I'm fairly certain that's how a lot of people's "logic" goes. :)

Re:It's Not Going To Make A Difference (2, Interesting)

twidarkling (1537077) | about 4 years ago | (#31530964)

Correct me if I'm wrong, but in filesharing cases, they're usually statutory damages, not punitive, no? In this case, I'd think it's punitive damages, thus allowing the discrepancy in what people are accepting.

Alternatively, if I'm not correct about the statutory damages, in both cases, people are trying to destroy a broken business model. The RIAA's by disallowing massive fines being used as a sledgehammer against people so they can continue doing business the way they want, rather than how the market will allow, and spammers by using fines to break a business model that thrives generally on scams and using other people's resources to promote their business at a greatly reduced cost (tons of spam sent through botnets, after all).

Re:It's Not Going To Make A Difference (4, Informative)

mr_matticus (928346) | about 4 years ago | (#31531866)

Correct me if I'm wrong, but in filesharing cases, they're usually statutory damages, not punitive, no?

Well, correction.

Both copyright damages and these spam damages are statutory damages (i.e. specified by statute, as opposed to discretionary), and both are intended to have punitive value (i.e. you will only enforce the claim against a tiny minority of offenders and therefore it's the risk and cost of being caught that has deterrent value). Neither are punitive damages (i.e. additional damages beyond what is restitutionary or compensatory owing to specific misconduct by the defendant).

The GP's point is spot on for many people here (though there are also many who have no problem with the penalties and enforcement structure, and instead have issues [some legitimate; many not] with the substantive laws that give way to the penalties in the first place).

Re:It's Not Going To Make A Difference (0)

Anonymous Coward | about 4 years ago | (#31531190)

One case involves a clear for-profit motive. If something is profitable (and sharing out files for free generally isn't) then it makes sense to have higher fines to balance the higher reward. It also prevents some extreme cases where breaking the law turns a profit.

Re:It's Not Going To Make A Difference (1)

iphinome (810750) | about 4 years ago | (#31531816)

File sharing doesn't tend to involve fraud but instead non commercial infringement, for most people profit motive matters.

Re:It's Not Going To Make A Difference (2, Insightful)

cortesoft (1150075) | about 4 years ago | (#31532064)

I don't know if increasing punitive damages to fit our dislike is illogical, or even necessarily a bad idea. Punitive damages DO in some sense measure the strength of the public's dislike for an action; the purpose of establishing punitive damages is to reduce the occurrences of a behavior that society deems undesirable. It makes sense that we would want to more strongly punish actions that we dislike more than actions that we actually like. There is no 'objective', 'purely logical' reason to assign any specific value to punitive damages (otherwise they would be compensatory damages, ie equal to the monetary value of the harm done). Therefore, any argument as to how much punitive damages should be assessed for various infractions would logically be based on how badly society wants to prevent the action from happening.

In the case of illegal filesharing of copyrighted work, it is hard to make an argument that any member of society is suffering a great harm that is higher than the compensatory damages equal to the purchase cost of the downloaded work. In fact, until the illegal downloader is caught, the offended party is unaware that a crime has even taken place! From the "victim's" perspective, the world where the illegal download took place and a world where the downloader had never even been born are absolutely identical. It is hard to make an argument that there should be large punitive damages to prevent something that has such an unnoticeable effect.

Spam, on the other hand, causes people anguish long before the criminal is caught. A world where spam is sent and a world where all the spammers were never born would be a completely different world. Society would certainly notice the difference, and would be much happier in a world where spammers had never been born. It makes perfect logical sense to want to increase the punitive parts of the damages.

Re:It's Not Going To Make A Difference (1)

cortesoft (1150075) | about 4 years ago | (#31532150)

Now to counter my own argument (because I like to do that sort of thing):

You are totally stacking the deck by choosing this type of argument, and abusing the particulars of the crime of copyright infringement.

By choosing to compare a world where the download takes place and a world where the downloader was never born, you state that, to the copyright holder, the world is exactly the same. However, it isn't; there exists one less potential customer in the world. Now, you might say that this one customer is such a tiny fraction the world, and anyway the likelihood that he or she would become an actual customer are pretty low. While the chance of this person being a customer, while certainly less than 1, is most likely higher than that of a random person in the world (they show some interest in content by illegally downloading it). Now apply this little thought experiment to ALL downloaders; now the world either has all these people downloading music or all those downloaders were never born. That is a LOT less customers in this new downloaders-never-born world. To act as if the worlds are the same is a bit disingenuous. Whether these damages are greater or less than what is assessed can be argued, but it is not as simple as saying the worlds would be the same.

Re:It's Not Going To Make A Difference (0)

Anonymous Coward | about 4 years ago | (#31532272)

This is not brilliant logic here, and if you really go by this, go for the entertainment on the People's Court.

Making money on spam is not really the thing to find through the court system. Jello isn't either.

This is all fucked Jello talk that has just been stamped. To rebut your statement, this is not 'logic.'

Re:It's Not Going To Make A Difference (3, Insightful)

PRMan (959735) | about 4 years ago | (#31530954)

Littering is $1000 in California, too. What's the harm to anyone if someone throws a piece of (biodegradable) paper out their window?

The harm is not the 1 piece of paper, it's the 1,000,000 that result if there is no fine. The fine has to be punitive enough to stop the 1,000,000.

Think of this as littering in someone else's inbox.

Re:It's Not Going To Make A Difference (5, Informative)

Anonymous Coward | about 4 years ago | (#31531164)

I run the network of a small business. Less than 15 people. Program too. Let me tell you *what* spam costs.

    Three years ago, it became a problem that wasn't getting handled by the clients. The CEO was annoyed at having to delete 20 messages a day. He got to deleting things so fast he accidentally deleted a very important message in his hurry. More than once. Cost to the business: ~$50,000 in potential sales.
    We bought a spam filtering firewall to handle it. Yes, there's lots of open source solutions--but we had no spare hardware for virtualization, our mailserver was an undocumented mess--and I needed an "on the wire just work" solution. Cost: three hours of research, $500 purchase, $200 a year for a 24x7 warranty.
    In 2008 we had our first joe-job--we were running a business class DSL line in the office, 2 Megs, async. The backscatter *took us offline* for over two days. I had BATV installed within four hours, but almost nobody uses it. Oddly enough, postmaster didn't get any complaints that I found. We had to move our mailserver into a co-lo and purchase the bandwidth, as our ISP couldn't filter that out on the fly. And don't start on the poor little firewall appliance nearly bursting into flames as its load went up to 5-6 on a single CPU trying to scan the content.

Because of SPAM, I can't run an open relay, and my users have to connect either via VPN to a trusted open LAN submission service, or I have to install passwords in the outbound SMTP system. Both of these take configuration changes. Because of SPAM, users on aircards can't follow their ISPs email instructions--I've got domainkeys--they need to send mail from *my* mailsystems.

So yeah, SPAM costs our company alone a minimum of $200 a year just in subscription fees and maintenance. In practice, it's cost a lot more, and has taken us offline. What do you think it costs a company the size of IBM, or the state of California?

I'm just grateful I'm not in an industry where I'm required by law to archive all these things. And you are aware storage is *expensive* right? Yeah, I can get a cheap ass drive at home for $100 for 1 TB. But at work--high availability systems, high availability storage, tape archiving, backups, redundancy. Now--not everything needs this, but even the cheap cable attached SAS drives aren't coming in for less than $200, and those don't have much capacity and are like 7200 RPM. To actually benefit from those, I need at least direct attached storage, or a NAS device-- $4000 - $20,000+. Of course, I *could* build it myself and end up with no warranty or support contract...

Now, to capitalize on this and back it up, I'll need either a tape backup system, shipping, or a high speed fiber link to somewhere.

Lest you say all of this isn't caused by one spam--it's well established in the US that the "weak skull defense" is *not* valid. If it's the last spam that caused my firewall to crash, or forced me to invest in the firewall--they are liable for it.

Anybody who runs a megacorp network want to tell mr speedy exactly what spam actually costs their company? Don't forget the extra AV licenses you probably had to purchase for the distributed scanners...

Re:It's Not Going To Make A Difference (2, Informative)

Ziest (143204) | about 4 years ago | (#31533360)

I used to work for Cisco in San Jose. I was part of the group that ran the Unix email systems for the entire company. Cisco is a company of 60,000 plus people around the world. All the email for Cisco goes through Sun Jose. In my group we had 9 system admins and 1 manager who were dedicated to handling spam. When I was there (2004 - 2005) we had a dozen top-of-the-line IronPort anti-spam servers. We were adding an additional one every couple of quarters. I don't really know but an educated guess would be that the spam consumed a very large part of the bandwidth the San Jose campus used, I'm sure it was more that 40%. Now think about what it cost to pay 9 very experienced system admin and 1 manager (salary, benefits, stock options, office equipment, etc) not to mention the equipment and bandwidth costs, just to deal with the spam.

If it was not for the spammers, Cisco and other large companies could be putting that money into new products. Instead the money is spent to deal with idiots who, were it not for our anti-spam group, would be wasting the productivity of the entire company.

Since spammers are, in fact stealing bandwidth, I have often thought that they should be charged, at the very least, with theft of service or grand theift.

Re:It's Not Going To Make A Difference (1)

Tim C (15259) | about 4 years ago | (#31533644)

In 2008 we had our first joe-job--we were running a business class DSL line in the office, 2 Megs, async. The backscatter *took us offline* for over two days.

I own a domain for private use, which is hosted by a friend. It's set up so that all mail to any address at that domain is delivered to me.

I was the victim of a joe-job a few years ago; at the height of the problem, I was getting 2000-3000 mails *per day* from the backscatter and spam to the faked from addresses. It didn't knock anything offline, but it was pretty bloody annoying. Thankfully it has since dropped to maybe a couple of dozen per day.

Re:It's Not Going To Make A Difference (1)

lordlod (458156) | about 4 years ago | (#31533714)

...

So yeah, SPAM costs our company alone a minimum of $200 a year just in subscription fees and maintenance. In practice, it's cost a lot more, and has taken us offline.

...

Your story is interesting and it's clearly costing your business money but it still doesn't add up to anywhere near $1000 per email.

Let's say that you have ten people (you stated less than fifteen) and they all recieve 20 spam a day (what you quoted for the CEO). That's roughly 73,000 emails a year.

You listed a one off loss of a $50,000 sale, a one off purchase of a $500 filter and $200 per year maintenance. I'll add in $500 per year per staff member to filter email and general pain. Taking the one offs and assuming they occur every three years we get $55,700 in cost per year.

The magic figure out of all this very rubbery estimation is 76 cents per email. Lets call it a dollar, it's a nice number and nobody will rationally argue that it costs more than $1 (USD) to handle a single piece of spam.

Now let's look at what the legistlation puts him on the hook for and compare it to everyone's favorite boogy man, the copyright infringement minimums.
Cost: Spam = $1, Copyright = $1
Minimum damages: Spam = $1000, Copyright = $750

So there are a few options for people on this site:

  • Support Spam and Copyright minimum damages
  • Claim that both are two high and the spammer has been unjustly treated
  • Openly accept that they hold a hypocritical position
  • Try to differentiate them somehow, the spammer was attempting to make money even though he wasn't a big business. What about a part time DJ?

Personally I think both are too high. The very concept of a minimum punishment is insane and ties the hands of the Judge. It doesn't work for criminal cases (three strikes etc.) and it doesn't work in these cases. The punishment should be applicable to the details of the particular case, including the damage, financial gain, intent and position and history of the perpatrator.

Re:It's Not Going To Make A Difference (2, Insightful)

metrometro (1092237) | about 4 years ago | (#31531214)

There's a degree of pragmatism here. The ratio [spam sent] to [court cases won] will be lower than 1000:1, making the per-email judgement, in most cases considerably lower than $1 a message. Of course, a class action could destroy somebody, but then, that's kind of the idea. Deterrent.

Re:It's Not Going To Make A Difference (0)

Anonymous Coward | about 4 years ago | (#31531298)

I think I can make a case for far more than $1000 in lost wages (as a male prostitute) after that male enhancement spam turned out to be fake.

Re:It's Not Going To Make A Difference (0)

Anonymous Coward | about 4 years ago | (#31531422)

If the spam is fraudulent, then each email is an attempt to actually defraud someone (albeit an amateurish, pathetic attempt most of the time). That's a far more serious offense than sharing a song, isn't it? I think it warrants a punitive fine.

Re:It's Not Going To Make A Difference (1)

vandrooo (1770716) | about 4 years ago | (#31531946)

It's an attempted scam of 1000's of dollars. If you try to murder someone, but fail, you still get screwed.

Re:It's Not Going To Make A Difference (1)

Xaositecte (897197) | about 4 years ago | (#31532104)

I did a little searching for relevant non e-mail equivalents.

Sending Junk snail-mail doesn't seem to be against the law in most jurisdictions.

The closest equivalent I could find is laws against sending junk faxes, which can result in damages of several thousand dollars per page in most jurisdictions.

So yes, $1000 per e-mail is not without precedent.

--------------

With the file-sharing thing, suppose you're in trouble for 10 songs. You could have stolen a CD, get caught, charged with Petty theft, and let off with community service...

Or you could have used a file-sharing program, and had your life ruined in the ensuing lawsuit. The punishment is not only completely out of proportion to the crime, it flies in the face of all precedents for dealing with similar crimes offline.

 

Re:It's Not Going To Make A Difference (1)

Khyber (864651) | about 4 years ago | (#31532426)

E-mail and Faxes are both covered under 'electronic communications' for unwarranted transmissions laws.

Re:It's Not Going To Make A Difference (1)

smhsmh (1139709) | about 4 years ago | (#31532346)

"Damages" in a civil complaint, despite legal theorems, has two components. The obvious one is the the costs suffered by the plaintiff. The other (less often explicitly acknowledged) is the punishment to discourage future repetitions.

Suppose some extremely-clever human-engineered phish or spam yields on average more than the fraction of a cent cost that span penalties might obtain. There would be no disincentive for spamming

Of course, spamming today has essentially no cost to the perpetrators. When there is an international corps that track down spammers and either puts a bullet in their brains or shuts off internet connectivity to their entire country, operating characteristics will change.

Re:It's Not Going To Make A Difference (2, Interesting)

shadowfaxcrx (1736978) | about 4 years ago | (#31533130)

First off, they're going easy on the guy. The 1995 TCPA allows for up to $1500 damages per offense, payable to the plaintiff.

Second, the amount of "hurt" of the penalty should be standardized. A megacorporation that gets fined a grand for some act of wrongdoing isn't going to care, and is therefore likely to continue committing the offense, writing the penalty off as a business expense, because it's likely that the business is making far more money off of breaking the law than it is losing in penalties. That same $1000 applied to a burgerflipper at McDonalds is going to hurt a lot more.

(And since corporations insist on being treated as individual people, I would say the doctrine of equal treatment under the law should come into play here, and it's certainly not equal treatment to fine the McDonalds guy 200% of his paycheck for the same offense that you fined the corporation 0.0000001% of its daily earnings, eh?)

Point being, the $1000 fine depends on how much this dude earned. Some spammers earn a hell of a lot of money sending that crap out. Why should they get to keep so much of it after breaking state (and federal) law literally millions of times?

Re:It's Not Going To Make A Difference (1)

gdshaw (1015745) | about 4 years ago | (#31533192)

Didn't we agree that fines or other cash penalties should be at least roughly tied to the amount of harm done?

No, the point was that if the cash penalty is disproportionate then the case should be tried in a criminal court with criminal standards of proof.

(Yes, I reluctantly agree that this should apply here too.)

Re:It's Not Going To Make A Difference (1)

GooberToo (74388) | about 4 years ago | (#31531106)

This guy is going to declare bankruptcy

A judge still has to grant bankruptcy status. Due to the nature of his problems, its likely a judge will not give him a pass. Abuse of the law to side step the other hand of the law isn't a typical reason allowed for bankruptcy.

Re:It's Not Going To Make A Difference (1)

tomhudson (43916) | about 4 years ago | (#31532420)

Abuse of the law to side step the other hand of the law isn't a typical reason allowed for bankruptcy.

Tell that to SCO.

Re:It's Not Going To Make A Difference (1)

shentino (1139071) | about 4 years ago | (#31531912)

He's a spammer, he's rich.

And concealing assets, even ill-gotten gains, from the court in a bankruptcy proceeding is bankruptcy fraud, which is a federal offense you can go to prison for, not just get the crap fined out of your balance sheet.

sore hands? (-1, Offtopic)

Anonymous Coward | about 4 years ago | (#31530334)

more like sore ass when oboingo, harry reis, and nancy pelosi finish fucking it.

Better headline (5, Funny)

MrEricSir (398214) | about 4 years ago | (#31530408)

"Slamming spam lands spammer in slammer"

Re:Better headline (3, Funny)

d474 (695126) | about 4 years ago | (#31530768)

"Slamming spam lands spammer in slammer"

Now his ham will get hammered in that slammer!

Re:Better headline (3, Funny)

v1 (525388) | about 4 years ago | (#31530912)

I was thinking he might be having problems with some unsolicited male in his outbox?

Re:Better headline (0)

Anonymous Coward | about 4 years ago | (#31532158)

Well for a minute at least. See, the outbox is going to quickly become an inbox.

Re:Better headline (0)

Anonymous Coward | about 4 years ago | (#31532410)

Ha ha, he's going to be imprisoned and raped. :)

Wait, that isn't funny. It's fucking creepy.

Re:Better headline (0)

Anonymous Coward | about 4 years ago | (#31533938)

Ha ha, he's going to be imprisoned and raped. :) Wait, that isn't funny. It's fucking creepy.

He's a spammer, do you want to give him a medal instead?

2010 a bit late? (1, Insightful)

Anonymous Coward | about 4 years ago | (#31530454)

Its 2010, well over a decade after spam became a prominent problem. Why is this the first successfull prosecution of a spammer? Bit late wouldnt you say? I thought the can-spam act has been around for years. Why arent these guys being taken down sooner? Guess better late than never.

Re:2010 a bit late? -- The wheels of justice (3, Insightful)

ameline (771895) | about 4 years ago | (#31530666)

The wheels of justice grind very slowly, but they grind extremely finely too -- this guy is finding that out.

Re:2010 a bit late? (0)

Anonymous Coward | about 4 years ago | (#31531572)

It's really late. I mean who gets SPAM anymore? I know that network admins, gmail folks, hotmail folks, some ISPs and the like do a lot of work and spend a bunch of money on preventing SPAM and from what I can see what they do works. I almost never get any SPAM at all. Maybe 1 a week between my 4 email accounts that I use. From my "end user perspective" this is a solved problem. I know it isn't solved from a network perspective - but thinking of it like someone who would end up on a jury thinking, "who gets SPAM anymore?" makes me think there won't be very many of these cases...

Re:2010 a bit late? (0)

Anonymous Coward | about 4 years ago | (#31532160)

Would you rather have swift justice?

Give the courts a few more years, the last thing we need are more computer/internet laws by people who [insert zinger about old people being clueless about computers].

Hell, just look at the cyberbullying crap being pushed through now.
Do you really want jail time [wired.com] for violating a website's ToS?

Overboard (3, Insightful)

Spykk (823586) | about 4 years ago | (#31530690)

I hate spam as much as the next guy, but $1,000 per e-mail is just as rediculous as the rewards we are seeing for pirating music. Can't we work to solve this problem without making up huge numbers that no one will ever be able to pay anyway?

Re:Overboard (5, Insightful)

frosty_tsm (933163) | about 4 years ago | (#31530882)

$1,000 per e-mail is similar to $10,000 per call to someone on the do-not-call registry. This is about taking away the financial benefit of these obnoxious business activities. Pirating music is not a business activity.

Re:Overboard (2, Interesting)

pgmrdlm (1642279) | about 4 years ago | (#31531892)

Have ISP's take offline every machine that has been proven to issue spam until the owner cleans it to the ISP's pre defined and posted rules are met.

Any ISP that is found to NOT enforce these rules is fined 1,000 for every spam that is found to originate from their network.

Once these conditions are met and enforced heavily, ISP’s will go out of their way to assist identifying the origin of the infections that are causing the spam. We then hand down sentences requiring that every individual prosecuted for spam must go door to door with a representative of what ever ISP and clean peoples computers of the software issuing the spam. If the software can not be cleaned, the person that has been convicted and is cleaning these computers MUST pay to have these machines reformatted and reloaded to factory defaults. That means if there are no OS cd’s, the person must purchase them.

These rules would accomplish a couple things.
1). Make ISP’s responsible for keeping their networks clean.
2). Make individuals responsible for keeping their computers clean.
3). I’m hoping by a spammer having to clean peoples computers that some of them get the living shit kicked out of them by angry individuals.

We have industry wide enforcement, education of individual users, and retribution sentences that make the person committing the crime to interact with his/her victims.

Re:Overboard (1)

MrMista_B (891430) | about 4 years ago | (#31533772)

No, what that would mean is that every single ISP that's smaller than something the size of Google would go out of business.

Those rules would accomplish a couple of things.

1). Make the risk of operating an ISP so high that only the very largest companies would risk it.
2). Make the cost of internet access so expensive, due to risk to the ISP, that only the wealthiest individuals and corporations could afford it.
3). Make it easy to shut down massive swaths of the internet by merely forging email headers.

Good job!

Re:Overboard (1)

Inda (580031) | about 4 years ago | (#31534038)

In the UK, someone managed to get £270 + £30 costs from a spammer through the small claims court. Costs go up inline with the claim; £270 kept the costs under £30. This is from 2005; I believe the figure is £450 + £50 these days.

http://www.zdnet.co.uk/news/it-strategy/2005/12/28/court-victory-in-the-fight-against-spam-39244402/ [zdnet.co.uk]

That's not far off your $1,000.

I think it a good figure. It's high enough to shock someone without making them bankrupt.

I love throwing out the £450 figure when spammers originate from my home town (bless you Gmail and your search Gods). The threat of knocking on their door to collect makes me feel warm inside.

new plugin for gmail (4, Funny)

Anonymous Coward | about 4 years ago | (#31530820)

Can I get a "sue" button on my gmail spam folder? I'd love to get $1000 for each of the of spam emails I get everyday.

Re:new plugin for gmail (0)

Anonymous Coward | about 4 years ago | (#31531548)

1000 for each of the spams I have to mark as spam myself would be nice enough...

Re:new plugin for gmail (3, Interesting)

Parallax48 (990689) | about 4 years ago | (#31531604)

It would be great to group all emails marked as spam by gmail into one folder, group it by spammer (or just main contents of message) and make those emails available to lawyers / forensics experts hoping to do some investigative research and bring a class action lawsuit.

If they simply picked the most "popular" spam message every week and got an award of $1000 per email when they located the spammer (keeping say 10%) it would be a nice profitable business.

Re:new plugin for gmail (1)

tomhudson (43916) | about 4 years ago | (#31532474)

The problem is that gmail is the #1 source of spam that I'm seeing, as well as the #1 source of bogus spam registration attempts.

Do you REALLY want to solve the spam problem in 3 easy steps? It's simple.

  1. End "freemail" accounts. All email accounts have to be verifiable and linked to an end user account.
  2. End "private domain name registration." All domains have to have verified contact info.
  3. Lifetime ban on purchase, possession, or use of all electronic devices (enforced by RFID chipping the person) for anyone convicted.

Spammers move offshore, their country gets dropped off the net until it cleans up its act.

Re:new plugin for gmail (1)

bhiestand (157373) | about 4 years ago | (#31533468)

The problem is that gmail is the #1 source of spam that I'm seeing, as well as the #1 source of bogus spam registration attempts.

gmail as in "signed by gmail" actually originating from gmail servers gmail?

Re:new plugin for gmail (1)

hAckz0r (989977) | about 4 years ago | (#31532570)

Why not configure Gmail to automatically forward your spam to a remote host daemon process used to aggregate your spam emails by blue-pill-vendor.com http site and automatically send those compilations as a bill to each sales@bluepill.com, Oh, and be sure to CC: your chosen MyLawyer@LeagalProfession.com and Guido@collections-now.com. No buttons required! Just sit back and collect the payments.

If the money flow starts slacking off during these economic hard times, just create a few more disposable email addresses, like 48sjklfhfa@sneakemail.com (my favourite disposable email address site, but I think they are no longer free), and be sure to post them on a private no-spiders-allowed/robots.txt labelled web site. The more spam, the more money! Life is good once again...

If I had a nickel... (1)

jcr (53032) | about 4 years ago | (#31530900)

For every spam I got, I could buy a nice house in the mountains. If I had a grand for each of them, I could retire the national debt!

-jcr

Re:If I had a nickel... (1)

PRMan (959735) | about 4 years ago | (#31530976)

Tracking spammers down so you can sue them is not cheap. Nor is showing up in court. It's not that profitable.

Re:If I had a nickel... (1)

jcr (53032) | about 4 years ago | (#31532416)

Regrettably true. Even if you could collect the judgements, it would be difficult to schedule the cases often enough to clear a grand a day.

-jcr

Re:If I had a nickel... (1)

Khyber (864651) | about 4 years ago | (#31532436)

It's cheap if you actually have a clue about what you're doing.

If you don't have a clue - better stick with the phone and voice mail, and shut your computer down.

Re:If I had a nickel... (0)

Anonymous Coward | about 4 years ago | (#31532634)

Obviously, you don't get as much Spam as we in the IT sector do.
Running a three or four letter domain name in the .com's get's me somewhere in the neighborhood of 5600 per day across the nearly six hundred mailboxes I administer, and that doesn't include the nine hundred and seven ip blocks that I've ACL'ed out of even being able to try making SMTP connections.

that's 2,044,000 a year, or around $100K at $0.05 per.
even with half of that, I could get a pretty nice chunk of land out here in Canada. maybe not a house with it, unless I let the guy send me two to three years worth.

jebus. that's over two billion dollars at a $K a piece. I should setup an office in California, I think. ;)

Well I for one ... (1)

ClickOnThis (137803) | about 4 years ago | (#31531080)

... won't miss this guy for more than the Planck time [wikipedia.org].

Re:Well I for one ... (1)

ClickOnThis (137803) | about 4 years ago | (#31531202)

won't miss this guy

meaning the defendant(s) of course. Seriously, I hardly think we're all going to get $1K from these people for each spam e-mail we have received. It just means they will have a financial rock on top of them that they can never lift.

Tenacity (1)

DaMattster (977781) | about 4 years ago | (#31531432)

You have to admire Daniel Balsam for his tenacity. It sure sent a message to would-be spammers that it is neither lucrative nor desireable to engage in such practices.

I'll split it with ya... (1)

Kazoo the Clown (644526) | about 4 years ago | (#31531470)

I'd be willing to split the take with anyone who wants to chase down and cash in on these guys. Hell, even at $500/per, I can retire in just a few weeks...

Di3Tk (-1, Flamebait)

Anonymous Coward | about 4 years ago | (#31531492)

= 36440 FreeBSD

$1000 damages, plus $1000 fine. (2, Informative)

fluffy99 (870997) | about 4 years ago | (#31531682)

The article says its damages, presumably payable to the person spammed by the spamming company. Given that the CA law also says its a misdemeanor, that would imply that individuals can be fined or jailed. Cali might be able to start prosecuting these guys and generating some revenue. Or maybe they'll stick with the easier to prove and more lucrative dwi cases.

From 17529.5. http://codes.lp.findlaw.com/cacode/BPC/1/d7/3/1/1.8/s17529.5 [findlaw.com]
(a)It is unlawful for any person or entity to advertise in a commercial e-mail advertisement either sent from California or sent to a California electronic mail address under any of the following circumstances:

(1)The e-mail advertisement contains or is accompanied by a third-party's domain name without the permission of the third party.

(2)The e-mail advertisement contains or is accompanied by falsified, misrepresented, or forged header information. This paragraph does not apply to truthful information used by a third party who has been lawfully authorized by the advertiser to use that information.

(3)The e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.

(b)(1)(A)In addition to any other remedies provided by any other provision of law, the following may bring an action against a person or entity that violates any provision of this section:

(i)The Attorney General.

(ii)An electronic mail service provider.

(iii)A recipient of an unsolicited commercial e-mail advertisement, as defined in Section 17529.1.

(B)A person or entity bringing an action pursuant to subparagraph (A) may recover either or both of the following:

(i)Actual damages.

(ii)Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of this section, up to one million dollars ($1,000,000) per incident.

(C)The recipient, an electronic mail service provider, or the Attorney General, if the prevailing plaintiff, may also recover reasonable attorney's fees and costs.

(D)However, there shall not be a cause of action under this section against an electronic mail service provider that is only involved in the routine transmission of the e-mail advertisement over its computer network.

(2)If the court finds that the defendant established and implemented, with due care, practices and procedures reasonably designed to effectively prevent unsolicited commercial e-mail advertisements that are in violation of this section, the court shall reduce the liquidated damages recoverable under paragraph (1) to a maximum of one hundred dollars ($100) for each unsolicited commercial e-mail advertisement, or a maximum of one hundred thousand dollars ($100,000) per incident.

(3)(A)A person who has brought an action against a party under this section shall not bring an action against that party under Section 17529.8 or 17538.45 for the same commercial e-mail advertisement, as defined in subdivision (c) of Section 17529.1.

(B)A person who has brought an action against a party under Section 17529.8 or 17538.45 shall not bring an action against that party under this section for the same commercial e-mail advertisement, as defined in subdivision (c) of Section 17529.1.

(c)A violation of this section is a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000), imprisonment in a county jail for not more than six months, or both that fine and imprisonment.

songs (1)

timmarhy (659436) | about 4 years ago | (#31531736)

just as stupid as the $25,000 per song rulings. maybe this is indicative of how much their judges make, that $1000 doesn't seem like much to them?

Re:songs (1)

centuren (106470) | about 4 years ago | (#31533030)

just as stupid as the $25,000 per song rulings. maybe this is indicative of how much their judges make, that $1000 doesn't seem like much to them?

As someone's pointed out already, sharing songs via peer-to-peer networks is not a business activity -- the perpetrator isn't profiting from the action. Spamming is a business model, and, in California, an illegal one. Damages of $1000 per spam email are designed to disrupt the profit motive by increasing the monetary risk one undertakes when engaging in this illegal business. It's not the same as sharing songs, as the defendants weren't earning income from sharing. Remember, it's the distribution they get in trouble for, not the download, so the argument that their profit comes by means of avoiding the cost of a CD doesn't work.

Good luck with that... (1)

damn_registrars (1103043) | about 4 years ago | (#31531854)

File this one with all the others who think they will get money out for punitive damages from spammers. We all know in the end it won't work, the plaintiff won't see any money; hence don't hold your breath for your "share" either.

Of course, IANAL, however we see that the PDF states the lawsuit (note it was not a criminal trial) was against a company. If the company doesn't have any responsible staffers in the US, then this suit isn't worth the paper the ruling was printed on. Furthermore if the company goes under then the payment for the ruling will be decided in bankruptcy court (though only if they are a US-based company).

The plaintiff(s) would have been wise to just save their time and not bother bringing a lawyer into the matter, as in the end they will likely end up paying a lot more money to that lawyer than they will ever see form the company they just sued.

Re:Good luck with that... (1)

StuartHankins (1020819) | about 4 years ago | (#31532236)

The plaintiff(s) would have been wise to just save their time and not bother bringing a lawyer into the matter, as in the end they will likely end up paying a lot more money to that lawyer than they will ever see form the company they just sued.

The important part is that a precedent has been set, so this guy's hiring a lawyer may not benefit him but will undoubtedly benefit many others. Sometimes you have to just go with the greater good, knowing that it will all work out in the end. Someone has to stand up and light the first match, so to speak, to get the fire going.

Re:Good luck with that... (1)

danielsfca2 (696792) | about 4 years ago | (#31532918)

light the first match, so to speak, to get the fire going.

Oh, please, please tell me this means the next step involves burning all spammers alive? Pretty please can we can we? I would support that plan because SPAMMERS ARE WHY WE CAN'T HAVE NICE THINGS.

Re:Good luck with that... (0)

Anonymous Coward | about 4 years ago | (#31533326)

I second the motion... or third the motion, or whatever.

Re:Good luck with that... (3, Informative)

Animats (122034) | about 4 years ago | (#31532358)

File this one with all the others who think they will get money out for punitive damages from spammers. We all know in the end it won't work, the plaintiff won't see any money; hence don't hold your breath for your "share" either.

No, he's going to collect on this one. The other side showed up in court, represented by counsel, and lost. The spammer has business premises within Redwood City, CA, where the court is located.

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