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Opt-In Junk Fax Law Survives Court Challenge

timothy posted about 11 years ago | from the undue-burden dept.

Privacy 131

An anonymous reader writes "From Privacy.org: The U.S. Court of Appeals for the 8th Circuit has upheld (PDF) the Telephone Consumer Protection Act (TCPA) of 1991 against a First Amendment challenge. In the case, Missouri v. American Blast Fax, junk fax company Fax.com and Wal-Mart argued that the law violated the First Amendment because it imposes fines upon companies that send fax advertisements without the consent of the recipient. The case is the latest court victory for opt-in privacy laws." I hope the same logic is applied to spam.

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131 comments

What, no comment about how many spam you receive? (-1, Offtopic)

Anonymous Coward | about 11 years ago | (#5579047)

First.

Has anyone actually tried to collect? (5, Interesting)

buckminster (170559) | about 11 years ago | (#5579054)

I'd be interested in hearing resports from individuals who've succesfully sued after receiving unsolicited commercial faxes. If you won, were you able to collect?

Re:Has anyone actually tried to collect? (1)

phillymjs (234426) | about 11 years ago | (#5579243)

Same here. Some damned mortgage company in the Philly burbs has somehow gotten hold of my home fax number and keeps sending me shit I don't want or need. I've started reading up on the junk fax law, and I'm thinking about taking it for a spin in the Philadelphia court system, for shits and giggles (and ~$500 per unsolicited fax those assclowns have sent me).

~Philly

Re:Has anyone actually tried to collect? (4, Funny)

Archfeld (6757) | about 11 years ago | (#5579389)

just reply back via fax using the taped roll method. Do it on a sunday at noon and when you run their fax machine dry of paper get a good chuckle :)

I've gotten $1800 in 9 months due to TCPA (4, Interesting)

DiveX (322721) | about 11 years ago | (#5579358)

One was a $1000 judgment that was paid and the other 2 were settlements provided before I even filed.
My junk fax case was dismissed due to a ruling 'made in error I might add' by a local circuit judge, however arguments concerning its appeal was heard last month.

Anyone folks, do some research. It will take a weeks worth of solid, full day, research, but you can file your own suits and collect from these scum. There is a minimum $500 statutory damage for each violation that can be trebled if you can show the violator 'knowingly or willfully' violated the law. It doesn't matter that they did not know the law or not. If they knowingly sent the fax, and that fax was against the law, then they are subject to those treble damages, so then each violation is $1500. I have several cases just waiting to be filed this summer when I have a bit more free time.

I have.... and here's a list of a bunch of others (1, Informative)

Anonymous Coward | about 11 years ago | (#5579497)

I have personally collected over $100,000 over the past 4 years. Cashed the checks. A friend of mine in Missouri has brought over 700 suits. An Illinois case won 6.5 million in a junk fax class action.... and the checks have already cleared.... paid out $4 million already. Here is just a partial list of cases where people won those cases:
  • Zelma v. Total Remodeling, Inc., 334 N.J.Super. 140, 756 A.2d 1091 (Super. Ct. N.J. 2000)
  • Robinson v. Carrao, No. 96-06124-I (D. Ct. Tex. Feb. 11, 1999)
  • Nicholson v. Hooters of Augusta, No. 95-RCCV-616 (Super. Ct. Ga. 1999)
  • Kaplan v. Democrat and Chronicle, 698 N.Y.S.2d 799 (N.Y.App.D. 1999).
  • Charvat v. AT&T, No. 98CVH-12-9334 (Franklin Co. Ct. of Common Pleas, Ohio, Nov. 30, 1999)
  • Schulman v. Chase Manhattan Bank, 710 N.Y.S.2d 368 (N.Y. App. 2000).
  • Charvat v. Continental Mortgage Services, Inc., Case No. 99CVH12-10225
  • Kaufman v. HOTA, Inc., NO. BC 222589 (Super. Ct. Ca., Aug. 25, 2000)
  • Parker v. American Blast Fax, Inc., No. 141-182692-00 (Dist. Ct. Tex. Sep 6, 2000)
  • Omnibus v. Dallas Cowboys Football Club, LTD, granting partial summary judgment to plaintiff, (D.C. Tex., Mar. 1, 2001)
  • Condon v. Rose, No 99-6158 SC (Hillsborough Co. Fla. March 8, 2000)
  • Physicians Data Inc., v. US West Wireless (no opt-in needed in Colorado)
  • Harjoe v. Freight Center, Inc., No. 00AC-005196 (Mo. Cir. Ct. Jan. 9, 2001)
  • Brentwood Travel, Inc. v. Lancer, Ltd., No. 01CC 000042 (Mo. Cir. Ct. Feb. 21, 2001) (personal jurisdiction)
  • Brentwood Travel, Inc. v. Lancer, Ltd., No. 01CC 000042 (Mo. Cir. Ct. Aug. 15, 2001) (express consent)
  • Aronson v. Fax.com, Inc., No. AR00-003023, 2001 WL 246855 (Pa. C.P. Feb. 28, 2001)
  • Coleman v. ABF, No. 00AC-005196 (Mo. Cir. Ct. Jan. 9, 2001),
  • Margulis v. VoicePower Telecom., Inc., No. 00AC-013017 Q CV (Mo. Cir. Ct. March 22, 2001)
  • Charvat v. Voice Power Telecom., Inc., Admits to being a common carrier (Apr. 13, 2001)
  • Biggerstaff v. Websiteuniversity.com, Inc., No 00-SC-86-4271 (S.C. Mag. Ct. March 20, 2001) (order striking defenses)
  • Coleman v. Real Estate Depot, Inc., No. 00AC 013006 FCV (Mo Cir. Ct. March 27, 2001).
  • Garver v. Susquehanna Radio Corp., No. 00-VS-002 168-F (Fulton Co. Ga., Mar. 20, 2001) (denying mtn. to dismiss and holding TCPA applies to prerecorded calls to answering machines from radio station)
  • Shields v. Voice Power Telecom., Inc., No. JC0000034 (J.P. Ct. Tex., Jan. 8, 2001)
  • Shields v. R&B Home Security, No. 47,596 (Tex. County Ct. April 2, 2001)
  • Coleman v. Varone, No. 00AC-023298 (Mo Cir. Ct., Mar. 26, 2001).
  • Worsham v. Nationwide Ins. Co., 772 A.2d 868, 874 (Md. Ct. Spec. App. 2001).
  • Zelma v. Market U.S.A., Nos. A-1667-99T1, A-2898-99T5, -- A.2d --, 2001 WL 868049 (N.J.Super. A.D., Aug 02, 2001)
  • Bailey v. Cookies in Bloom, No. 01CV292 (D.C. Colo, July 6, 2001) (appeal from small claims ct.)
  • Busbia v. Direct TV, Inc., injunction (Super Ct. Ga., April 30, 2001)
  • Levit v. Fax.com, injunction (Cir. Ct. Md., July 27, 2001)
  • Kondos v. Lincoln Property Co., order certifying class, No. 00-08709-H (D.C. Tex., July 12, 2001)
  • Jemiola v. XYZ Corp., order granting prelim. injunction (Ct. C.P., Ohio, April 3, 2001)
  • R.F. Schraut Heating & Cooling, Inc. v. Maio Success Systems, Inc., No. 01AC11568 (Mo. Cir. Ct. Aug. 14, 2001)
  • Mathemaesthetics, Inc., v. Reiner, No. 00CV951, (Dist. Ct. Colo., Aug. 15, 2001).
  • Davis, Keller, Wiggins, LLC. v. JTH Tax, Inc., No. 00AC-023289 (Mo. Cir. Ct. Aug. 28, 2001).
  • Charvat v. Hallmark Mortgage Svcs., Inc., No. 00-CVH-09-8352 (Ct. C.P. Ohio, Sep. 4, 2001).
  • Kaplan v. Ludwig, 2001 WL 1153093 (N.Y.A.D. Sep. 28, 2001)
  • Allendale County Bank v. Fax.com, Inc., TRO to preserve records.
  • Zeid v. Image Connection, No. 01-AC002885 (Div 39) (Cir. Ct. Mo., Oct 30, 2001)
  • Irvine v. Akron Beacon Journal, Irvine v. Akron Beacon Journal, 2002 Ohio 2204 (Ohio App., 2002) (Jan. 9, 2002)
  • Brentwood Travel, Inc. v. Annex Computers, Inc., No. 01AC13051 (Mo. Cir. Ct. Dec. 18, 2001)
  • Davis v. Johnson, No, 065145 (Small Claims, Travis County Tex., Dec. 21, 2001)
  • Reynolds v. Diamond Foods & Poultry, Inc., S.W.3d --, 2002 WL 171438, 2002 Mo. App. LEXIS 231 (Mo. App. E.D. Feb. 5, 2002) aff'd 79 S.W.3d 907 (Mo. 2002) (en banc).
  • Agostinelli v. L.M. Communications of South Carolina, Inc., No. 00-SC-86-2862 (Mag. Ct. S.C., Feb. 14, 2002).
  • Mey v. Feature Films for Families, No. 01C-233 (Mag. Ct. W.V., March 21, 2002)
  • Zeid v. The Reding Law Firm, P.C., No. 01AC-013005 (Cir. Ct. Mo., March 19, 2002).
  • Kaufman v. ACS Systems, Inc., No BC22258 (Super. Ct. Ca., Oct 30, 2001).
  • Agostinelli v. Roberts Mtg. Co., No. 01-SC-86-2537 (Mag. Ct. S.C., March 25, 2002).
  • Clean Carton Co., Inc. v. Constellation 3D, Inc., (order denying MTD on ABF), No. 01AC-029591 (Div 29) (Mo. Cir. Ct., June 25, 2002).
  • Clean Carton Co., Inc. v. Constellation 3D, Inc., (order denying MTD on third party acts), No. 01AC-029591 (Div 29) (Mo. Cir. Ct., June 25, 2002).
  • National Educational Acceptance, Inc., v. Smartforce, Inc., No. 01AC-2849 (Div. 41) (Mo. Cir. Ct., Jun. 21, 2002)
  • Girards v. Inter-Continental Hotels Corp., No. 01-3456-K (Tex. Dist. Ct., Apr. 20, 2002)
  • Girards v. Inter-Continental Hotels Corp., No. 01-3456-K (Tex. Dist. Ct., Sep. 18, 2002) (class cert.)
  • Rhone v. Olympic Comm., Inc., No.: 01AC-002887 (Mo. Cir. May 14, 2002)
  • Mathemaesthetics, Inc.v. Lassiter Marketing Group, LLC, No.02 CV 139 (Dist.Ct.Colo., June 6, 2002)
  • ESI Ergonomic Solutions, LLC v. United Artists Theatre Circuit, Inc., 50 P.3d 844 (Az. App. 2002)
  • Brentwood Travel Serv., Inc. v. Ewing, No. 01AC-022171 (Div. 39) (Mo. Cir. Ct., Apr. 30, 2002)
  • Harjoe v. Colonial Life & Accident Ins. Co., No. 01AC-11555 (Div. 35) (Mo. Cir. Ct., May 2, 2002) aff'd Harjoe v. Colonial Life & Accident Ins. Co., No. 02AC-001983 (Div. 45) (Mo. Cir. Ct., Aug. 29, 2002)
  • Connor v. Cumpston, No. 01-SC-86-3799 (S.C. Mag. Ct., Feb. 13, 2002)
  • National Notary Ass'n, v. U.S. Notary, No. D038278, 2002 WL 1265555 (Cal.App. 4 Dist.).
  • Charvat, v. Dispatch Consumer Svcs, Inc., 769 N.E.2d 829, 95 Ohio St.3d 505 (Ohio, 2002).
  • Charvat v. Continental Mortgage Svcs, Inc., 2002 WL 1270183 (Ohio C.P., June 1, 2000).
  • Levitt v. Fax.com, Inc., No. 24-C-01-2218 (Cir. Ct. Md., Nov 27, 2002)
  • Wilder v. DialAmerica Marketing, Inc., No. CV810946 (Super. Ct. Ca. Nov. 20, 2002)
  • I Dream Solutions, Inc. v. Ellsworth, Inc., No. 01AC-014959 (Div. 39. Mo. Cir. Ct., Nov. 12, 2002)
  • Pelland v. America's Toner, No. 024SSC0699 (Mass. Small Claims, Oct. 25, 2002).
  • Robin Hill Dev., Co. v. JD&T Ent., Inc., No. 01 L 527 (Ill .Cir. Ct., Oct 3, 2002)
  • Coontz v. Nextel, No. C200100349 (D.C. Tex. Oct. 16, 2002) (class cert)
  • Gold Seal v. Prime TV, (Ind. Cir. Ct., Aug 29, 2002) (class cert)
  • Marine Tech., Inc. v. DirecTV, Inc., No 01-635 Cir. Ct. Md., Oct. 24, 2002) (class cert.)
  • BMR Ind., Inc. v. Central Missouri Pizza, Inc., No 02 CC 3966 (Mo. Cir. Ct., Oct 22, 2002) (injunction to preserve records)
  • Holcomb v. SullivanHayes Brokerage Corp., No. 01CV2193, (D. C. Colo., Feb. 25, 2002) (appeal)
  • Merchants & Business Men's Mutual Ins. Co. v. A.P.O.. Health Co., Inc., 8/29/2002 NYLJ 22 (Sup. Ct. N.Y., August 29, 2002) (insurance coverage, duty to defend TCPA claim)
  • Micro Eng. v. St. Louis Ass'n of Credit Mgmt., Inc., No 02AC-008238 XCV (Div 39, Aug. 13, 2002) (1A)
  • Micro Eng. v. St. Louis Ass'n of Credit Mgmt., Inc., No 02AC-008238 XCV (Div 39, Aug. 13, 2002) (joinder)
  • Dana Bruns v. E-Commerce Exchange, Inc., No 00CC02450 (Super. Ct. Ca., Mar. 13, 2002) (sanctions against Fax.com)
  • Adamo v. AT&T, No. 00 CVI 156 (Ohio Mun. Ct., Nov. 7, 2000) aff'd Adamo v. AT&T, No. 79002, 2001 WL 1382757 (Ohio App. Nov. 8, 2001)
  • Omnibus Intern., Inc. v. AT&T, Inc., Cellular Plus, Inc., 2002 WL 31618413 (Tex.App.-Dallas Nov 21, 2002)
  • Salpietro v. REIA, No. GD00-9071 (C.P. Pa., Dec 19, 2000) (class cert.)
  • McKenna v. Accurate Computer Svcs, Inc., No. CV 1329 (D.C. Colo., Nov. 7, 2002) (statute of limitations)
  • Arkow v. Bank of America, Municipal Court of Newhall Judicial District for the County of Los Angeles, CA.
  • Uretsky v. Starr Security Systems, DuPage Co. Illinois, ss: 94 SC 3515 (1994)
  • Szefczek v. Hillsborough Beacon, 286 N.J. Super. 247, 668 A.2d 1099 (1996)
  • Bailey v. Colorado Prime, Superior Court of New Jersey Law Division-special Civil Part Middlesex County, March 13, 1997
  • Rice v. Vacations Outlet of Colorado, CASE NO. 97-CV-3745 affirmed by Rice v. Vacations Outlet of Colorado, CASE NO. 97-CV-3745, June 18, 1998 (DC Colorado 1998).
  • Kaplan v. First City Mortgage, 701 N.Y.S.2d 859 (N.Y.City Ct. Dec. 8, 1999).
  • Kaplan v. Life Fitness Center, No. 1999-SC-11448 (Rochester City. Ct December 13, 1999).
  • Biggerstaff v. Computer Products, No. 99-SC-86-2892 (Magis. Ct. Charleston County S.C. Sep. 29, 1999)
  • Biggerstaff v. Low Country Drug Screening, No. 99-SC-86-5519 (Small Claims Ct. Charleston, Co. S.C. Nov. 29, 1999)
  • Biggerstaff v. SBS Resort Promotions, Inc., No. 99-SC-86-3267 (Small Claims Ct. Charleston, Co. S.C. Dec. 15, 1999)


There are a bunch more, but I'm tired of cutting and pasting from the database.

IBM should patent Spam. (2, Funny)

B3ryllium (571199) | about 11 years ago | (#5579055)

If IBM patented Spam, the world would be a better place.

Re:IBM should patent Spam. (4, Interesting)

Zeinfeld (263942) | about 11 years ago | (#5579117)

If IBM patented Spam, the world would be a better place.

If you had read this months Tech Review you would know that IBM policy is to allow open licensing of its patents. As a result they earned $10 billion on their patent portfolio last year. Universities file patents at the same rate (3,500 a year) but generally license them on sole license terms, netting only $1 billion.

So what you should hope is that MIT, or better yet Harvard had invented SPAM and patented it. History demonstrates that they have been much better at keeping technology off the market.

Re:IBM should patent Spam. (2, Funny)

B3ryllium (571199) | about 11 years ago | (#5579153)

Hmm, I hadn't known that. Makes perfect sense though :) How about USC Berkely? They could handle spam ... :)

It's constitutional to limit spam (3, Informative)

Animats (122034) | about 11 years ago | (#5579056)

It's already been held to be constitutional to limit spam. That was settled in Ferguson vs. Friendfinder last year.

Sort of. (4, Informative)

www.sorehands.com (142825) | about 11 years ago | (#5579184)

In Ferguson v. Friendfinders the issue was not free speech, but the application dormant interstate commerce clause of the constitution. This is the prohibition of the state putting a heavier duty on an out of state reisdent to do business than in an state resident. In the Washington laws' cases, the court's decision was that the state was permitted the labeling of SPAM. That it was labeling and identification, not stopping and to stop on a request.

This is different from saying, you can't send SPAM prior to permission being given.

Re:Sort of. lol! (1)

MacAndrew (463832) | about 11 years ago | (#5579965)

Gee, I haven't heard the expression dormant interstate commerce clause in a while!

I think you and other refer to another case, which upheld Washington State's antispam law, Heckel v. State [wa.gov].

I looked up material [eff.org] regarding what I think is this case and see you're right that it is a commerce clause case, but there are first amendment overtones [eff.org] that perhaps was not argued or the court overlooked. I'm not especially familar with this case, but do wonder about the possibility of 1st A. arguments.

In any event, the ruling of an intermediate California court is not hardly conclusive of the issue nationally or federally (I don't know how California is set up, but it may not even be statewide in effect). Did the California Supreme Court deny review? Anyway, Ferguson is just a state court ruling about a particular state's law, there are 50 more of then, and judges certainly enjoy contradicting each other. Federal challenges will add a whole new layer.

Re:Sort of. lol! (1)

www.sorehands.com (142825) | about 11 years ago | (#5580619)

The funny thing in Ferguson, is that they are both in California. The case is applicable as any case in any state appeals would be. But, when there are no (or few) rulings on a specific law or issue the courts will look at other states, circuit courts for guidance.

Re:It's constitutional to limit spam (4, Interesting)

Zeinfeld (263942) | about 11 years ago | (#5579204)

It's already been held to be constitutional to limit spam. That was settled in Ferguson vs. Friendfinder last year.

Yes but the first court that heard the Nixon case had a judge who was a complete idiot and rulled that the junk fax laws were unconstitutional. The judgement basically said that the judge thought he knew better than Congress. He basically dismissed all the evidence that junk faxes cause the victims unnecessary expense on flimsy grounds and then claimed that there was nothing to support the law.

I did not expect the original Nixon judgement to stand. Fortunately it was completely unreasonable and the reasoning plain stupid. However there is an argument that the judge made (not the defending council, the judge, which kinda shows what an idological twit he was), that may well stand. That is that the junk fax law is overbroad since an opt-out list like there is now for junk marketting calls could meet the same requirement without restricting free speech.

I have been pushing for the spam laws to include a one-way encrypted opt out list provision for this very reason. I think that ultimately the Nixon argument might hold in the case of spam, especially since the cost per spam is less.

Incidentally, I got a piece of info from the Microsoft lawyers on the reason they are taking the line they are on the Washington state spam law. The piece that has not made the public yet is that the scheme the DMA is currently up to is to pass a law in DC that guts all the state spam laws and replaces them with a law that says that ISPs MUST deliver all spam from DMA members. The plan of the DMA is to bribe enough members of Congress to pass an 'anti-spam' law that is in fact a 'pro-spam' law.

Fax Spam (1, Redundant)

Mephie (582671) | about 11 years ago | (#5579058)

I hope the same logic is applied to spam.

At the very least it's a step in the right direction.

not as hard to opt-out (5, Interesting)

coke_dite (643074) | about 11 years ago | (#5579060)

I work in a government office, and we receive a LOT of unsolicited faxes. I've found that a simple phone call can get almost all the traffic to stop immediately. Granted, this is a pain in the ass and it's time-consuming, but with four phone calls, I've managed to completely get rid of all our unsolicited faxes! People are usually much more polite about no longer sending faxes, but (here, at least), the laws are stricter, since receiving a fax actually costs money (the paper it's printed on and the ink it uses up add up to a lot of money over a year).

The people I'm working with have been receiving these faxes for YEARS, but no one ever thought to call the company to get them to stop.

Re:not as hard to opt-out (4, Interesting)

The Ape With No Name (213531) | about 11 years ago | (#5579081)

since receiving a fax actually costs money

Can we infer that receiving a spam does not cost money? In order to build the case against spam, we have to show that it does cost money. In our case, server upgrades, electricity and hours worked.

Re:not as hard to opt-out (-1)

Anonymous Coward | about 11 years ago | (#5579183)

How about we build a case against you for adding nothing new to the discussion and wasting people's time?

Hey, you're sort of like a Spam human being. That's amusing.

Re:not as hard to opt-out (0)

Anonymous Coward | about 11 years ago | (#5579495)

Don't forget bandwidth.

Re:not as hard to opt-out (2, Insightful)

justzisguy (573704) | about 11 years ago | (#5579100)

Calling the company works well enough for faxes, but it's a shame that spam can't be stopped so easily. Most of the time email addresses are shut down before you can "unsubscribe" and a lot of the opt-outs are just confirming your email addy...so sad...

Re:not as hard to opt-out (2)

abhisarda (638576) | about 11 years ago | (#5579116)

I have seen a few offices where the fax machine is only used for contracts that are important and need a hard copy so that even if the receiver tries to fake it they can't. Other than that most of them have switched to email(sending 25 pages over fax is plain stupid now).
The fax machines are switched on only when the sender calls up the receiver so the problem of junk spam is totally eliminated.

Re:not as hard to opt-out (3, Insightful)

trotski (592530) | about 11 years ago | (#5579208)

Well, none of us ever click on the stop-sending-me-this button, with good reason. When the spammer knows that theres a real person at the receiving end they INCREASE the amount of spam they send you, and tell all of they're spamming friends.

The only thing the company you call will do is sell your phone number (for more money!) to more companies and the amount of fax-span you get will INCREASE. It's sad but true.

Re:not as hard to opt-out (-1)

GhostseTroll (582659) | about 11 years ago | (#5579225)

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Re:not as hard to opt-out (3, Informative)

gad_zuki! (70830) | about 11 years ago | (#5579379)

>I've found that a simple phone call can get almost all the traffic to stop immediately.

Yeah, because they know they got caught. Its illegal to spam fax and they're more than happy to stop. They much prefer that than going to the authorities or starting a civil law suit. I'm sure they were VERY polite.

"Oh sorry about that, we must have accidentally put you on our list."

Bullshit.

Re:not as hard to opt-out (2, Informative)

leviramsey (248057) | about 11 years ago | (#5579419)

Also, spammers tend not to like spamming actual government offices; such spam carries with it the risk that you spam some important person who begins calling for IRS audits of the spammer and so forth. Since the types of scumbags who spam tend to play fast and loose with their taxes, they really don't want to get audited...

You're kidding, right? (3, Informative)

RonVNX (55322) | about 11 years ago | (#5579941)

I've called plenty of times for plenty of different senders. I have yet to get through to any of them.

Aside from the fact that no one should have to make a call to stop being stolen from, it just doesn't work.

Just Imagine... (1)

Anonymous Coward | about 11 years ago | (#5579067)

...the power of a cluster of these court cases! We could brute-force civilization toward the better. Who's with me?

Re:Just Imagine... (3, Funny)

Anonymous Coward | about 11 years ago | (#5579143)

i think america is doing quite enough brute-forcing of civilization right now, thank you very much.

IANAL (0, Offtopic)

rde (17364) | about 11 years ago | (#5579068)

... so I'm not qualified to comment. I'll just say that this news makes me happy.

YOU ARE MOST LIKELY A GAY HOMOSEXUAL FAGGOT (-1, Flamebait)

Anonymous Coward | about 11 years ago | (#5579147)

and you probably like men's penises, too!
we don't need to know that you anal, queer!


CAN I SUCK YOU'RE COCK? (-1, Troll)

Anonymous Coward | about 11 years ago | (#5579200)

Look to me like you're a pretty repressed homo.

Just for laughs (1)

RLiegh (247921) | about 11 years ago | (#5579070)

I got an @msn email address, and it has yet to be spammed. I've had it for about 2,3 weeks or so.

I'll check back in about 6 months and let you folks know how much that has changed. ;)

Incidently, because of having next to no choice in ISP's where I live, I'm considering going with wal-mart starting next month. It'll be interesting to see full my 'inbox' is, how quickly it it's filled and what it's filled with.

Re:Just for laughs (1)

BenV666 (620052) | about 11 years ago | (#5580403)

I'll check back in about 6 months and let you folks know how much that has changed. ;)
My guess is that the account will be long disabled by then ;)

Apple is ghey (-1, Troll)

Anonymous Coward | about 11 years ago | (#5579072)

Shoutz to all the pink Apple niggaz.

Re:Apple is ghey (-1, Troll)

Anonymous Coward | about 11 years ago | (#5579652)

Dumb fuck. If you are going to troll, please pay attention as to where you are posting. Context is a good thing.

Reminds me of all the fax.com stories (5, Interesting)

xintegerx (557455) | about 11 years ago | (#5579073)

First, a year ago (march 31), a federal court ruled that suing Fax.com under this law was unconstitutional. [slashdot.org]

Then, the FCC in August fined fax.com for doing what it was doing. [slashdot.org]

You'd think that was a lot of money? Next, later in August, Alert newsreporter Slashdot reported that Fax.com was being sued for 2.2 TRILLION dollars [slashdot.org]

Hillarity ensued! [slashdot.org]

So now, Fax.com owes 5.4 million + 2.2 Trillion (actually 2.2 billion) which is still 2.2 Billion USD.

However, since Fax.com is a business, all assets will just be seized of the business and the owners will lose nothing except the business.

Har har!

Re:Reminds me of all the fax.com stories (-1)

Anonymous Coward | about 11 years ago | (#5579123)

And to think I just ran out of mod points... Honorary +1 insightful.

Re:Reminds me of all the fax.com stories (5, Interesting)

bigbigbison (104532) | about 11 years ago | (#5579210)

IF I recall the details of that story, the judge that decided that fax.com could send jumk faxes did so under the reasoning that it was free speech. the judge? Limbaugh, the same one that declared that videogames WEREN"T deserving of first amendment free speach protection...

Re:Reminds me of all the fax.com stories (1)

OYAHHH (322809) | about 11 years ago | (#5579402)

Judge's Info,

Just in case anybody wants to send the judge a junk fax the info can be found at:

http://www.moed.uscourts.gov/Judge/chambers.asp? Ju dge=Stephen%20N.%20Limbaugh

Please note, the actual link does not have a space between the u and d in the second instance of the word judge. The space shows up in the preview window but definitely is not in the Mozilla dialog for posting. Anybody know how to get rid of it?

Re:Reminds me of all the fax.com stories (0)

Anonymous Coward | about 11 years ago | (#5579483)

make it an actual link instead of just the link text? Or do you not want the courts to know the junk faxes came from slashdot readers? =)

Re:Reminds me of all the fax.com stories (1)

LordNimon (85072) | about 11 years ago | (#5579621)

You can get rid of it by enabling HTML and putting the URL in an "a href" tag, like this:

<a href="http://www.moed.uscourts.gov/Judge/chambers. asp?Judge=Stephen%20N.%20Limbaugh">http://www.moed .uscourts.gov/Judge/chambers.asp?Judge=Stephen%20N .%20Limbaugh</a>

Interesting Argument (3, Insightful)

PetoskeyGuy (648788) | about 11 years ago | (#5579086)

Faxes Cost more then email, ink, paper, wear-n-tear and people can't recieve faxes while one is incoming. I hope this can be applied to spam, but the costs are much lower, and email can be downloaded much faster. Email servers can handle lots of incoming mail at the same time.

Still it sets a good precedent that could be very useful in the future.

Re:Interesting Argument (2, Insightful)

Anonymous Coward | about 11 years ago | (#5579172)

But at the same time, there is a lot more email spam than there is fax spam.

Re:Interesting Argument (4, Interesting)

stretch0611 (603238) | about 11 years ago | (#5579297)

Faxes Cost more then email, ink, paper, wear-n-tear and people can't recieve faxes while one is incoming. I hope this can be applied to spam, but the costs are much lower, and email can be downloaded much faster.

Actually, when my mail client downloads mail it does it one at a time(admittedly it is a lot faster than a fax). It is not unusual to get up to 50 spam messages a day and assuming 10K each that is 1/2MB. If you can't get Cable or DSL that can take a few minutes, and I pitty the person on dial-up that goes on vacation only to come home and download Spam for a half-hour.

If it cost more than zero then it cost enough, (2, Interesting)

Anonymous Coward | about 11 years ago | (#5579471)

The burden however small it is is placed on me. Even if it costed me only 1 cent, this is one cent I would have to pay for something I did not ask to begin with. Plus those "cent" would cumulate with the sheer mass of spam.

In all other case of advertising, the cost are shifted on the sender. With spam it isn't. And as such, this is the same burden as fax law. You cannot/should not make the receiver pay for the burden of your own advertising.

Fax-Unsubscribe-Blasting? (5, Interesting)

telemonster (605238) | about 11 years ago | (#5579088)

I always wanted to use the 800 number on junk faxes, and setup a computer with a simple script that would sequentially "unsubscribe" every phone number in my exchange from their database.

there is a big difference... (3, Interesting)

Theolojin (102108) | about 11 years ago | (#5579092)

between unsolicited email and unsolicited facsimiles. unsolicited email (spam) may cost the recipient *indirectly* in rather intangible ways (i.e., used bandwidth) that are very difficult to calculate. unsolicited facsimiles, however, cost the recipient in very tangible ways: paper & toner. i do not allow a store to print advertisements from my printer so why should i have to allow a store/business to print advertisements from my fax machine?

Re:there is a big difference... (-1, Flamebait)

Anonymous Coward | about 11 years ago | (#5579140)

According to your logic, it is ok to shove an unsolicited dick in your ass because it costs you *indirectly* in rather intangible ways that are very difficult to calculate. Have a nice day.

Not as big as you think (5, Insightful)

cyberlemoor (624985) | about 11 years ago | (#5579170)

Sure, an email doesn't usually cost a lot to receive. But tens or even hundreds of emails a day, multiplied for instance by many employees in a business can add up to serious increases in a lot of costs.

And not just bandwidth costs. How about billing costs? You're a $300/hr consultant who has to spend half an hour a day sorting through your email trying to figure out what's spam and what's not. That's not an "intangible" cost. That's $750 a week. Sure you could find better ways to block it or sort it more efficiently or whatever, but that's another thing imposed on you by those sending the emails.

When such a large percentage of email is sent every day, I don't believe you can say the monetary cost is insignificant.

Excellent proofreading skills (1)

cyberlemoor (624985) | about 11 years ago | (#5579176)

Whoops...my last sentence should read, "When such a large percentage of email sent every day is spam, I don't believe you can say the monetary cost is insignificant."

Re:Not as big as you think (1)

Theolojin (102108) | about 11 years ago | (#5579338)

> When such a large percentage of email is sent every day, I don't believe you can say the monetary cost is insignificant.

if you will re-read my post, you will notice i did not state the monetary cost of spam is insignificant. i stated the costs of spam is intangible and difficult to calculate.

Re:Not as big as you think (1)

cyberlemoor (624985) | about 11 years ago | (#5579574)

You're right. I didn't mean to imply that the comment was directed specifically at you, but more at people in general, many of whom seem to dismiss the costs of spam. My main disagreement with your post was the statement that the cost is intangible. It is definitely there, and as tangible as wasted paper and ink, even if you have to think about it a little to discover its sources.

Re:Not as big as you think (1)

Theolojin (102108) | about 11 years ago | (#5579984)

> You're right. I didn't mean to imply that the comment was directed specifically at you, but more at people in general, many of whom seem to dismiss the costs of spam. My main disagreement with your post was the statement that the cost is intangible. It is definitely there, and as tangible as wasted paper and ink, even if you have to think about it a little to discover its sources.

spam definitely costs money to the recipient. in most cases, however, the bandwidth the spam uses cannot be calculated. for example, a cable modem user is charged a flat fee for usage. even several megabytes of spam per month is miniscule compared to the total bandwidth available. some isp's charge increasing amounts based on bandwidth usage. even in these instances, the bandwidth used by receiving spam is minor compared to the overall bandwidth used.

Re:Not as big as you think (1)

cyberlemoor (624985) | about 11 years ago | (#5580186)

But as I pointed out in my post, there are other costs besides bandwidth. I believe time to be a major one. And that is easily calculated. Ask an employee how much time is wasted reading, trashing, filtering, or finding out how to filter spam mail. Multiply by hourly wage, and you know right away how much money is lost there. Also, very large companies may pay a significant amount of money to consultants, a major function of whom may be to attempt to reduce spam. Again, an easily measurable monetary value that is not insignificant.

Re:there is a big difference... (1)

AndrewRUK (543993) | about 11 years ago | (#5579327)

Well, the judgement says that "unsolicited fax advertising ... burdens the computer networks of those recipients who route incoming faxes into their electronic mail systems" as part of accepting that junk faxes do cause a cost to the recipent, so it seems to me that it could apply to (email) spam just as easily.

Basis of this whole spam/fax issue (4, Interesting)

tulare (244053) | about 11 years ago | (#5579104)

The first thing I (and many others - this is hardly original thought) think of is cost-shifting from advertisers to customers/consumers. Where a TV spot is clear-cut - the advertiser pays money to the station/network to buy a spot, and all the consumer "loses" out of the bargain is thirty seconds of "Who Wants to Marry This Guy For His Money," when it's a blasted fax, the person on the other end, who did nothing to deserve this, now has their fax machine tied up for several minutes; they have to pay for paper, toner, and disposal of the junk, which often enough has no relevance to their business.

With spam, more of the burden falls on the ISPs: bandwidth costs money, and a spam broadcast promising bigger penises directed at fifteen thousand randomname@domain.com chews hell out of bandwidth. I"ve seen this firsthand, and it isn't pretty. Then there's the issue of tech resources being diverted to deal with the problem: buying software to block spam, dealing with irritated customers who either got the spam or had an email falsely flagged, tracking down spammers, etc.

The first amendment is limited in the US - you can't yell out "fire" in a crowded theater, and you can't block the entrance to a business in protest of a policy. I'd posit that spam is very similar to the latter case, only the argument is even weaker in that a protester is at least making a moral point, while the spammer is only trying to make a fast buck.

What I'd really like to see is some way to prosecute people who use open mail relays to broadcast spam. Many of these people operate from within the US with impunity. I fail to see the difference between what they are doing and cracking, forgery, and DOS attacks.

Worse yet. (1)

jspoon (585173) | about 11 years ago | (#5579192)

Advertisers are providing a service by cutting into "Who Wants to Marry This Guy For His Money."

Seriously, when companies advertise by buying air time, they're generally benefitting the viewers-that content would not exist were it not for its commercial viability. Sure, they give you "Who Wants to Marry This Guy For His Money," but they also give you everything you like (besides all that great stuff on Public TV), and someone out there must watch that other crap.

Fax spam is a different story. If there were a direct comparason to the world of tv ads, Wal Mart would be paying a portion of your telecom bill.

Technically... (0)

Anonymous Coward | about 11 years ago | (#5579759)

You can yell out "fire" in a crowded theater; if the theater is indeed on fire. Certainly not shouting "fire" did precious little for the club-goers of Warwick, RI, aye?

Spam will never die =/ (5, Interesting)

Snowspinner (627098) | about 11 years ago | (#5579115)

There's no law against sending unsolicited postal mail, so far as I know. Why should there be against faxes and e-mails?

The only argument I can think of is that faxes and e-mails are transmitted at a loss to the carrier or recipient. E-mails take up bandwidth that the sender doesn't pay for. Faxes take up ink and paper, and also tie up the phone line and thus choke out signal in favor of noise.

The fax problem is pretty insurmountable, so this is probably a good law. But I wonder about the e-mail. How long before Yahoo or Microsoft decide, in light of the anti-spam laws, to open their pipelines to spam companies for a cost. i.e. you may spam to Yahoo addresses for $500 a mailing, or whatever. Especially since consumers can opt out?

In the end, that would be both a good and a bad thing, I suspect. On the bad side, it would pretty much permanantly entrench spam into the culture. But I suspect that's already happened. The good side would be that it would, assuming anyone ever figures out a way to enforce the laws, crack down on Nigerian money scandals, and at least promote spam offered by quasi-reputable companies.

Re:Spam will never die =/ (5, Insightful)

jmauro (32523) | about 11 years ago | (#5579181)

There's no law against sending unsolicited postal mail, so far as I know. Why should there be against faxes and e-mails?

In the case of postal mail, the sender pays. If a company wants to waste their money sending stuff that's their business. In the case of Faxes and Email, the receiver pays. It means those sending the information don't pay but waste the money of people receiving the stuff. The economic difference is why an email box is full of spam, but your postal box may only get 3 to 4 items a week.

Re:Spam will never die =/ (3, Informative)

shepd (155729) | about 11 years ago | (#5579224)

>There's no law against sending unsolicited postal mail, so far as I know.

There is [usps.com], but it's opt-out.

Enjoy! Don't forget to send it to Wal-Mart for their bra advertisements!

Re:Spam will never die =/ (1)

sebmol (217013) | about 11 years ago | (#5579616)

Sending unsolicitied advertising via postal mail is illegal in a number of European countries, most noticeably Germany. The law is not limited to postal mail though: no business without a business relationship to you may directly contact you against your will. In any buiness transaction, the customer has to do the first step (have the intent of having a business transaction). It's part of the German Personality Rights (which, for example, also make it a civil offense to insult someone).

Re:Spam will never die =/ (1)

cyril3 (522783) | about 11 years ago | (#5580463)

Why should there be against faxes and e-mails?

How 'bout

They shit me to tears, waste my time, offend my senses, frustrate me, annoy me, ittitate me, a hundred other adjectives that describe unpleasantness.

I don't care if there is no rational economic reason why it should be allowed, I don't want it.

I don't care about the spammers freedom of speech or the implications of banning spam. I don't want it.

I don't want to discuss definitions of spam. I know it when I see it.

I don't care if millions of legitimate businesses will be cut off from an effective and efficient way of reaching new customers or serving their existing clientel, I don't want it.

I just want the spam to stop.

I will support any law designed to do that including but not limited to the return of capital punishment and executive executions in all national juridsdictions. I will fix up later any un-anticipated side effects of such a law and promise to be sensible in it's application. maybe.

As for There's no law against sending unsolicited postal mail, there probably should be. That's starting to shit me as well.

Some of the above is an exageration for the purposes of the argument. Not much, mind you

Lame corporate greed (1)

Brad Mace (624801) | about 11 years ago | (#5579128)

It's pretty sad when corporations fight for their 'right' to send people crap they don't want, and expect us to pay for the paper they're using up.

It'd be especially bad if you've got you computer and fax on the same line, and you get booted offline in the middle of a big download to get some junk fax. There's plenty of other ways for companys to spew their junk out that are slightly less annoying.

Same reasoning might not apply to Spam (4, Interesting)

tm2b (42473) | about 11 years ago | (#5579157)

The court considered two ways in which faxes hurt the recipients:

  • They cost the recipient substantial resources ($100/year)
  • They deny the recipient use of their own equipment

Spammers could argue that neither of these apply to spam. The first is an issue because 80% of faxes automatically print, consuming paper and and ink. The argument having to do email is much more nebulous, requiring the court to consider the time consumed in deleting faxes as a resource. While it might be a reasonable argument to make, it's tricky when considered against a first amendment argument.

The second point is even harder to make against spam. While a fax machine is completely consumed while receiving a fax, a computer can do other things while receiving spam. The strongest argument that could be made is that the bandwidth of a dialup modem is consumed by the spam, which is still a weaker argument than is presented for fax machines.

So while both of the points are certainly arguable, it's not as easy an argument as it is with faxes. I do believe that antispam legislation is constitutional, I'm not sure that this particular decision does much to further that cause.

Re:Same reasoning might not apply to Spam (-1, Redundant)

Letter (634816) | about 11 years ago | (#5579242)

While a fax machine is completely consumed while receiving a fax, a computer can do other things while receiving spam.

dear coitus,

this is untrue in general. although it may seem that your computer is doing more than one thing at a time, in reality the processor is simply switching between programs very quickly. however, in the multi-processor sense, i give you props for a correct statement.

love,
scheduler

p.s. all your faxes are belong to us

Re:Same reasoning might not apply to Spam (2, Interesting)

ray-auch (454705) | about 11 years ago | (#5579460)

I don't think it is as clear cut as that.

eg. if the receiving fax machine is a computer, or has electronic store capability, then

- print cost is at the receiver's discretion
- connect charge is (almost always) totally paid by the sender
- there is a denial of service on the receiver's line

In the spam case:

- print cost is at the receiver's discretion
- typically no per-message (or at least, per-recipient) connect charge is paid by the sender
- connect charge is typically paid by the receiver, and may be expensive per-minute or per-byte
- there is a denial of service on the receiver's connection

So that actually looks like spam costs the receiver more (and the sender less) than fax.

It could be argued that fixed-cost connections are increasing so connection costs shouldn't be considered, but equally mobile internet usage is increasing and connection costs then are not fixed and typically not cheap either.

If we get to the point where most mobiles have email capability, shouldn't email be treated the same as SMS ?
[ I'm not sure what controls there are on SMS spam in the US but I am pretty sure there are controls elsewhere ]

Re:Same reasoning might not apply to Spam (1)

Darren Winsper (136155) | about 11 years ago | (#5579636)

A number of ISPs seem to be introducing download quotas, placing a per-MB charge on [A]DSL connections. Thus, spam will end up costing those folks.

Re:Same reasoning might not apply to Spam (1)

tm2b (42473) | about 11 years ago | (#5580604)

Yes, it can be so argued. However, the reason I say that it'll be more difficult to make that argument is that there are hard statistics for fax machines. Paper and toner are concrete, it's easy to put a value on them - the court quoted estimates that fax owners spend roughly $100/year printing junk faxes.

While in theory both fax messages and email messages are printed only at the discretion of the recipients, the fact is that 80% of all faxes received are automatically printed - read the court's opinion.

It's the ability to put hard numbers on the costs that this opinion rested upon, which is why I question the direct applicability to spam.

Re:Same reasoning not apply to Spam - Yes it does! (1)

Nom du Keyboard (633989) | about 11 years ago | (#5580169)

The court considered two ways in which faxes hurt the recipients:

They cost the recipient substantial resources ($100/year)
They deny the recipient use of their own equipment

Spammers could argue that neither of these apply to spam.

Spam is a denial of service attack when it fills up your inbox before you can empty it and prevents you from receiving wanted messages. That alone should be more then enough.

Limiting spam... (2, Interesting)

Midnight Thunder (17205) | about 11 years ago | (#5579211)

I hope the same logic is applied to spam.

The problem here is that even if a law is passed how do you track down the people responsible. Given that headers are usually forged and the open relays are likely to stay open then this is going to be diffilcult. You could change SMTP so that everyone is tracked from end to end, but this brings up privacy issues.

Since most spam makes reference to a phone number or website then the people selling the product should be held accountable. Its not a perfect solution either, but it is the best thing I can think of. What should the punishment be? Not sure, though how about a fine, equivalent to the costs of bandwidth usage, in the same manner the MPAA calculates the 'loss' of sales.

Re:Limiting spam... (1)

cpt kangarooski (3773) | about 11 years ago | (#5579885)

I don't think that's very good at all. Were that so, I'd imagine that you'd see /.ers sending out tons of spam on behalf of the MPAA/RIAA in an effort to stick them with the bill.

Personally, I loathe spam, but I don't see a way to get rid of it that is compatable with civil liberties. I just accept it as being a minor bother that is part and parcel of having a free society, and if some individual doesn't like it, they can always set up filters and such to get rid of it, or get their ISP to filter for them.

Re:Limiting spam...Attack the Open Relays (1)

Nom du Keyboard (633989) | about 11 years ago | (#5580159)

The problem here is that even if a law is passed how do you track down the people responsible. Given that headers are usually forged and the open relays are likely to stay open then this is going to be diffilcult.

So why aren't the techie people attacking the open relays and beating them into the ground? They can't be that hard to find, since the spamers find them, or attack. Send them messages that loop back into them until they are closed. By the time they've fought the loss of bandwidth and deluge of unwanted messages, maybe they'll be more responsible about how they comport themselves on the Internet.

Shape of Man..Revealed! (0, Troll)

ackthpt (218170) | about 11 years ago | (#5579219)

Hey, guess what, technology has lowered the bar for many things, but also for revealing the extent and depravity of human behaviour. These bottom-feeders complain about being treated unfairly when they want to behave unethically, the same as telemarketers and spammers. The real savings in their schemes is in passing the costs on the recipients, wasting time, wasting resources, tying up paid-for resources. It's a bit of a downer to see how many people, when they can commit such acts with anonymity will resort to such.

Small wonder that sh!t-heads like Alan Ralsky prize their privacy all the more once they've been revealed.

First Amendment doesn't guarantee to be heard (4, Insightful)

nurb432 (527695) | about 11 years ago | (#5579221)

Nor does it say *I* have to pay to hear you ( i.e.: resources to receive the fax.. and Spam too ).

It only guarantees your right to say it.. nothing more..

Funny how the retailers demand it, but if its bad press against them, they use the DMCA to squelch speech.

of course it does (1)

MacAndrew (463832) | about 11 years ago | (#5579781)

THis "no right to be heard" argument is often made but doesn't make a whole lot of sense to me. Of course free speech amounts to a right to be heard, beacause it bars certain attempts by people who don't want to hear the speech or don't want others to hear it. In either case, the person exercising free speech does it to be heard, otherwise it's like that tree falling in the forest with no one there to hear it.

So you can't stop protestors in the street simply because you don't want to hear them or political billboards merely because you don't want to see them or radio programs that you might stumble upon or political TV ads to don't want to view ot junk mail sent without your consent. You can avoid all these things, and many can be regulated as to time, place, and manner -- but you can't just declare the speaker has no right to be heard and prove anything by it. What I thing you're saying is that the first amendment doesn't given anyone the right to coerce people to listen, or to demand funding to underwrite the speech, and these come close to being true. Generally though the burden is on the listener, and in some cases it even costs something. I hardly defend spam and junk faxes, but do think "no right to be heard" does not represent actual law.

Re:of course it does (1, Insightful)

Anonymous Coward | about 11 years ago | (#5579889)

THis "no right to be heard" argument is often made but doesn't make a whole lot of sense to me.

Oh please, you know exactly what that argument refers to. It's just saying, in as few words as possible, that if I don't want to hear you exercissing your right to free speach, I can do that. It's saying you don't have a right to force your speach on anyone, and you don't have a god given right to any forum you choose. The free speech argument is always trotted out on (private of course) bulletin boards and forums where someone's post is deleted or their nick banned.

So in that sense, no you don't have a right to be heard. Specifically, you do not have the right to use your free speech right where, when and how YOU want, there are many limits and restrictions.

You misunderstand the intent of the framers. (3, Insightful)

nurb432 (527695) | about 11 years ago | (#5579900)

First of all I did not say you can stop anyone from speaking. That WOULD be a violation.

What I said, in more simple terms: you have a right to speak, and I have a right *not* to listen.

The discussion specially was concerning me paying to hear you speak. ( via the resources it takes to receive electronic 'speech', its not free ) Again that is wrong. You ( a generic term here ) do not have the authority to charge me to listen to you speak. Nor do you have the right to force me to listen.

Thus the concept that the 'right to be heard' does not exist. Nor should it. .

As a side note, I have the constitution and bill of rights on my wall above my desk, nowhere in there does it say I have to listen to you. It only states that you have a right to speak. Nothing more, thus no right to be heard.

Re:You misunderstand the text (1)

MacAndrew (463832) | about 11 years ago | (#5580047)

No, I understand your point, and sympathize. I don't want to expend money or effort to avoid or hear objectionable speech. The thing is that the world is messier and the First Amendment of necessity allows more imposition that a simple rule provides.

One example might be the junk mail sent to businesses. It takes money to pay people to sort through it. Another more compelling one is a political march by an unpopular group, say people demonstrating against Jim Crow (OK, this is dated). They have a right to police protection, even if the entire town refuses to hear, and although it would be cheaper if they did not speak. (This time the costs are do to the illegal actions of third parties, but still the objective result is the speech costs unwilling parties money.) And so on. Free speech has costs.

Now, whether you listen, well, it's hard to force anyone to listen, although the annoying old-fashioned sound trucks were held to be protected. But it may cost the listeners something even if they have their hands over their ears or aren't present. Certainly there are other ways of doing things, but a "can't cost be anything" rule is far from the law we do have, and so won't solve any court decisions.

Actually the First Amendment says even less, that the Congress shall pass no law abridging the freedom of speech. (This rule was later extended to the states, which have their own protections of speech that may go farther.) What "abridge" and "freedom" and "speech" meant exactly were left for later generations to figure out, and under our system the court rulings on these are effectively a part of the Constitution and must be read along with it.

Lastly the intent of the Framers and the text of the Constitution aren't necessarily the same. The Framers argued a lot and kept lousy notes. Imagine trying to figure out the intent of Congress...

Re:First Amendment doesn't guarantee to be heard (0)

cpt kangarooski (3773) | about 11 years ago | (#5579862)

Absolutely wrong.

The right to speak would be meaningless if people were unable to hear what was being said. Dare you propose that the framers were trying to protect a useless right? Of course not.

Now, you may choose not to listen, but that's incumbent upon YOU.

If you don't want spam or junk mail or junk faxes or door to door solicitors, just tell the senders not to intrude on your privacy and property.

BUT unless you take affirmative action, it seems perfectly safe to presume that having a phone line or an email account with no reasonable sort of notice to outsiders is implicit permission to use those resources to get in touch with you. Otherwise why on earth would you have them be publicly accessible?

Dare to propose framers protected useless rights? (0)

Anonymous Coward | about 11 years ago | (#5580168)

The right to speak would be meaningless if people were unable to hear what was being said. Dare you propose that the framers were trying to protect a useless right? Of course not.

"Of course not." If we assumed the framers were trying to protect a useless right, we'd all become prospective Supreme Court Justices, such as the majority in Eldred v. Ashcroft [stanford.edu].
q.e.d.
SCNR

Fax is not spam (4, Interesting)

btempleton (149110) | about 11 years ago | (#5579231)

Galling as it is, spam is not in the same class as fax so I would not expect much from this case into the world of spam. Remember, the courts are, quite rightly, loathe to put restrictions on communications. Here they said a fax costs enough to allow the government to do it. Spam costs are orders of magnitude lower, especially for any single spam. Unlike spam, a single fax can tie up your machine and make you miss a wanted fax, while for spam, only the overwhelming volume, not any one message, can be in rare cases responsible for filling a mailbox to the point it can't get mail.

The courts have mused over this issue a bit. The first rulings on the junk fax law were done when fax paper cost quite a chunk per fax, and people wondered as the cost came down if the cost-transfer test would still apply. The courts seem pretty clear that they don't think really miniscule cost tranfers would qualify as a compelling government interest, it's a question of amount here, not kind.

Re:Fax is not spam (2, Insightful)

shepd (155729) | about 11 years ago | (#5579406)

>Unlike spam, a single fax can tie up your machine and make you miss a wanted fax, while for spam, only the overwhelming volume, not any one message, can be in rare cases responsible for filling a mailbox to the point it can't get mail.

Hmmm, if this [slashdot.org] is correct, most of us are paying about $10 - $20 a month to receive spam. Companies would be paying in the $100 to $200 a month range.

That seems like enough to me.

Re:Fax is not spam (2, Interesting)

btempleton (149110) | about 11 years ago | (#5579425)

A lot of spam can load a server and cost money, but unfortunately no single E-mail has a cost that is worthy of notice, at least in the USA. With fax you can point to a fax and say, "This fax cost me 2 cents to print, and while it was coming in, my fax line was blocked for 2 minutes."

Unfortunately you can't do that with an e-mail. You can only say, "the ISP got a million spams and they finally had to buy more bandwidth."

Which can't be used to make a law that bans single spams the way the junk fax law bans single junk faxes.

Not that it works, of course. I have done lawsuits under the TCPA, the law that includes the junk fax provision. It is not productive. I have won money, but it takes more of your time per victory than it is worth.

Re:Fax is not spam (1)

rodgerd (402) | about 11 years ago | (#5580650)

If you run a mailbox with quotas, you can be denied the use of that resource. For that matter, if you get enough spam that all your mail processes/threads/other resources as appropriate are tied up, you're denied the use of the resource.

BREAKING NEWS (4, Interesting)

xintegerx (557455) | about 11 years ago | (#5579317)

Slashdot, OR: Slashdot.org today reports that the state of Missouri has figured out a new way to raise revenue while defending its citizen's rights.

Missouri's plan revolves around suing the spammers who trash resources of businesses with fax machines by sending commercial faxes, which Fax.com is alleged of doing.

"This business plan of this state leads others above and beyond any other similar proposed measure to restore dot com revenue in the declining economy," a slashdot poster said.

"Not that Missouri is a technologically important state. Heck, I don't even live there", he admitted. "However, I think it is an important lesson for other states to sue spammers as soon as possible to get as much money back as possible."

The reason for urgency is simple -- there is only so much money that an ex.com can be ripped for before it presses the Ch. 7 button on the TV remote, pointing at itself.

It was discovered shortly after the story broke that Fax.com had it's OWN business plan, too. We received the following from an anonymous source:

Fax.com BUSINESS PLAN
=======================
1) Violate junk fax law
2) Hope the law is invalidated when Missouri sues you; stay cool when the case goes for appeal. [slashdot.org]
3) Keep spamming for 5 more months to show your company's confidence in winning the appeal, too.
4) Get fined $5.4 million USD by the FCC for those 5 months of confidence and ignoring their requests [slashdot.org]
5) Get sued by a a businessman (within the month of #4) for $2.2 Trillion USD. [slashdot.org]
6) Learn that you lost the appeal and will probably lose every case against you. [slashdot.org]
Fortunately, a glimpse into a brighter future of the economy and privacy is not all that this latest announcement provides.
7) ??
8) Profit (?)
--

Unconfirmed reports say that this level of discredibility and the news of losing the appeals decision has FOXNEWS, part FOX Broadcasting Company, worried.

The AP wire reports that FOX.com is considering suing Fax.com also, but for a different reason.

A representative speaking on the condition of anonymity told us over the phone,

"We have always assumed that Fax.com was not a credible organization. Now, the court decision is proof that Fax.com is so untrustworthy or discredited that we fear people will confuse Fax.com with FOXNEWS.com."

A quote from a press release, added shortly to FOX's web site after the story broke, clears up why there could be confusion.

"It's NOT exactly because our domain names are similar that we are so upset. We just feel that this discredibility will have people confusing Fax.com with FOX.COM or FOXNEWS.COM due to the high level of discredibility that we here at the FOX BROADCASTING COMPANY NEWS DEPARTMENT strive to provide. We are seriously considering our own legal action. But it is true that we cannot have a competitor with a similar domain name trying to out do us."

The news of the court challenge means Fax.com will probably have to go bankrupt to debt. According to a Uranus Marketing survey, Fax.com is one of the last remaining of 14 profitable dot .con companies.

Even with the sentimental value, many readers of slashdot regarded this news as unimportant, expressing their sentiments wholeheartedly.

"We can just wait to read this until the second or third time it's posted on slashdot, thank you very much."
--
Missouri's win shows that states can do a lot to improve their economy and fight spam, too. However, that's not where the story ends.

In fact, the REAL story here is that this is slashdot's fourth article in a series of content covering Fax.com and its money woes.

Surprisingly, no dupes have been reported and each slashdot report was a new update on the case.
-
CmdrTaco could not be reached for comment.

Free Speech (1)

mesach (191869) | about 11 years ago | (#5579332)

I think trying to get the under free speech is fine...

But when you are using MY resources(paper for faxes, Time on my servers routing mail to recipients) for said free speech it no longer becomes FREE to me therefore a cost should be incurred ie: FINES

Free speech is fine when you make the signs and show it to me and all it takes is my glance, but if i have to exert any effort to do anything then it no longer is Free to me

I realize that the FREE in Free speech isnt referring to cost, but when it incurs a cost to me the I am against it.

Freedom of speech? (1)

SamMichaels (213605) | about 11 years ago | (#5579513)

This is starting to REALLY piss me off...

The first amendment states the GOVERNMENT cannot pass a law to shut you up. It says nothing about companies or private individuals.

The courts should fine the spammers/faxers/et al a stupidity fee.

Re:Freedom of speech? (2, Insightful)

MacAndrew (463832) | about 11 years ago | (#5579854)

So how about all the ads go out as a personal message from the company president? That's quite plausible for a company of one. Would that be entitled to free speech protection. Or if it's commercial content as opposed to a commercial speaker that deprives speech of protection, how about a nonprofit selling "Re-elect Bush" as a way to express its message and finance its organization? Is that political or commercial? What if they do it for profit?

I'm not criticizing your viewpoint, rather the idea that a sharp line can be drawn between commercial and political and individual speech. More than a few people have recommended abandoning the framework. The labels attempt to make the problem look easier, but they just move it back a step to figuring out what falls in which category. For example, courts used to try to figure out whether the government could act arbitrarily towards you if something was a right or a privilege, but that attempt to presort every interest into two neat categories has generally lost favor (for example, is driving a right or a privilege? well, whatever it is, the government must give you due process in depriving you of it).

And, of course, you're right that the First Amendment applies essentially to government action, but there's no company here trying to limit speech, they're the target.

Free speech, not free beer (or faxes) (1)

AArmadillo (660847) | about 11 years ago | (#5579606)

I'm lucky enough that my fax machine hasn't and doesn't get spammed. I could see where fax spam becomes a serious problem -- there are times where a certain fax coming through is important for me to meet a deadline for a project proposal. The last thing I would need is to be waiting urgently for a very important fax only to receive the latest rollback specials at Wall-mart. I'm not sure that this will have many implications on the legal side of the war on spam. With faxes, you can hold up a bottle of ink and a sheet of paper to a judge, and say "this is what these faxes are costing me." With spam, the costs are intangible, and given that the average judge probably does not know a whole lot about networking and bandwidth, it would be difficult to show a judge exactly what spam costs people and ISPs. You can't show them bandwidth and you can't show them time.

Nothing stands in the way of a federal ban on spam (4, Informative)

D4C5CE (578304) | about 11 years ago | (#5580008)

So the courts hold that outlawing spam is perfectly compatible with both the Commerce Clause and the First Amendment (and anyway, bulk mail is not really speech, but noise!) - now it's time to adopt something like the solution [slashdot.org] Europe enacted when it finally came to similar conclusions:

Directive 2002/58/EC [eu.int] (excerpt)

Unlike Europe, the U.S. of course do not even need to leave room for implementation, so with less Legalese than below, a hefty fine for spammers and punitive damages payable to the spammed can be defined right in the federal anti-spam statute. If it's balanced like the European solution (still permitting legitimate eMail within a narrowly defined business relationship, but outlawing all of the abusive practices that operate at the recipients' expense), it will easily pass constitutional muster, and help America get rid of junk mail once and for all (probably even within just a few weeks).

(40) Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and e-mails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, Community-wide rules for businesses and users.
(41) Within the context of an existing customer relationship, it is reasonable to allow the use of electronic contact details for the offering of similar products or services, but only by the same company that has obtained the electronic contact details in accordance with Directive 95/46/EC [i.e. the General Data Protection Directive]. When electronic contact details are obtained, the customer should be informed about their further use for direct marketing in a clear and distinct manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal.
(42) Other forms of direct marketing that are more costly for the sender and impose no financial costs on subscribers and users, such as person-to-person voice telephony calls, may justify the maintenance of a system giving subscribers or users the possibility to indicate that they do not want to receive such calls. Nevertheless, in order not to decrease existing levels of privacy protection, Member States should be entitled to uphold national systems, only allowing such calls to subscribers and users who have given their prior consent.
(43) To facilitate effective enforcement of Community rules on unsolicited messages for direct marketing, it is necessary to prohibit the use of false identities or false return addresses or numbers while sending unsolicited messages for direct marketing purposes.

(47) Where the rights of the users and subscribers are not respected, national legislation should provide for judicial remedies. Penalties should be imposed on any person, whether governed by private or public law, who fails to comply with the national measures taken under this Directive.

Article 13
Unsolicited communications

1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.
2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use.
3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation.
4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited.
5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected.

Article 17
Transposition

1. Before 31 October 2003 Member States shall bring into force the provisions necessary to comply with this Directive. (...)

US Code 47, spam, and the fax, ma'am (4, Informative)

Anonymous Coward | about 11 years ago | (#5580095)

Not long ago I had trouble stopping spam from one particular spammer. I finally sent them an email letting them know I would begin charging them $500.00 for every piece of spam I received from them, and included the statement below. Haven't seen a thing from them since. I borrowed this strategy from a page at www.snark.com

United States Code Title 47, Section 227(a)(2)(B) states that a computer, modem, and/or printer meets the definition of a telephone fax machine. Section 227(b)(1)(C) states that it is unlawful to send any unsolicited advertisement to such equipment. Section 227(b)(3)(C) states that a violation of the aforementioned Section is punishable by action to recover actual monetary loss, or $500, whichever is greater, for each violation.

My cell phone got junk faxed. (3, Interesting)

Montezuma58 (577906) | about 11 years ago | (#5580367)

Junk faxes con not only waste resources with fax machines they can also waste your cellular air time and clog up your voice mail. I got several fax messages in my voice mail before. My phone only lets me know if I have messages. I don't know whether they are fax or voice until I call in to check. I had the message system send the messages to a fax machine and was able to get them stopped based on the info on the fax. Very infurating.

Also the First Amendment argument used by the business is weak. The First Amendment give you the right to say what you want. It does not grant you the right to force someone to listen to you nor does it obligate me to offer any support to you in exercising your free speech. These junk faxes force you to listen to their message. They can't be ignored as easily as the talking head on TV with whom you disagree. And they sure as hell require the recipient to assist the sender. My freedom to listen is also implicit in the first amendment. If I don't have the option to choose to listen to or ignore your speech your speech isn't free.
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