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4th Circuit Court Sides With a Spammer

kdawson posted more than 7 years ago | from the federal-law-means-they-can-spam dept.

Spam 154

bulled writes to tell us about coverage on CNet regarding a ruling a couple of weeks back that allows a spamming company to procede with their suit against a spamfighter. The 4th Circuit court ruled that the U.S. CAN-SPAM Act, much derided here, trumps the Oklahoma law under which anti-spam activist Mark Mumma sued Omega World Travel for spamming him. The ruling allows Omega World Travel's countersuit, for defamation, to go forward. From the article: "'There's been a lot of activity in the states to pass laws purportedly to protect their citizens' from spam, said Eric Goldman, a law professor at Santa Clara University. 'The 4th Circuit may have laid waste to all of those efforts.'"

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May these judges get nothing but v14gr4 spam (3, Insightful)

Anonymous Coward | more than 7 years ago | (#17022518)

and rot in hell...

Re:May these judges get nothing but v14gr4 spam (2, Informative)

binaryspiral (784263) | more than 7 years ago | (#17024356)

These are the same judges who probably send internets to their staff and complain because the tubes are all cloged.

You see, it's not like a truck...

Re:May these judges get nothing but v14gr4 spam (1)

orkysoft (93727) | more than 7 years ago | (#17027182)

Email delays are because of spam filtering. Spam filtering is necessary due to the immense volume of spam. When will someone tell them that?

Mod UP if getting "XXXXXX wrote:" SPAM (-1, Offtopic)

DrDitto (962751) | more than 7 years ago | (#17022520)

Where XXXXXXX is replaced with a random first name. I get dozens a day! Started about a week ago.

Re:Mod UP if getting "XXXXXX wrote:" SPAM (1)

balsy2001 (941953) | more than 7 years ago | (#17022596)

I was getting a bunch of these for a few days. The text was just some random "story" that started mid sentence. I just kept having gmail send them to the spam folder. I guess it has learned now because I don't get them in my in-box anymore.

Re:Mod UP if getting "XXXXXX wrote:" SPAM (1)

owlnation (858981) | more than 7 years ago | (#17023704)

Yes, I was getting about 20 or 30 of these a day until I updated my filters in Thunderbird (since seemingly the junk mail settings in TB had some sort of learning disability with this one.)

I think stock related spam is now the singularly most annoying thing out there.

Re:Mod UP if getting "XXXXXX wrote:" SPAM (1)

ottothecow (600101) | more than 7 years ago | (#17024418)

It is possible that it is some spammer who is lacking actual products to spam you with at the moment so they are trying to screw with as many bayesian filters as they can. Remember, most of these kinds of filters (any learning filter will use some implementation of this...thunderbird...gmail) base the legitimacy of the email on its content. This is why you will often see paragraphs of random text at the end of spams, the filter sees things like viagra, buy, sell, get rich, and the types of formatting usually used in spam but then it also sees this somewhat intellectual sounding section at the end so it doesnt mark it spam. You read it and instantly mark it as spam and when you do that you are training the filter that the stuff written on the bottom qualifies as spam.

If they can get you to start qualifying what looks like a legitimate email (just from a fake person and not at all pertaining to you) as spam, your filter might start giving you false positives which would make you more inclined (they hope) to turn off your filter or check your junk folder more often in case you missed something.

Re:Mod UP if getting "XXXXXX wrote:" SPAM (2, Funny)

jacksonj04 (800021) | more than 7 years ago | (#17025944)

This doesn't work in most cases, since your friends aren't usually going to quote C. S. Lewis at you. Therefore, anything which sounds like classical literature is spam.

Re:Mod UP if getting "XXXXXX wrote:" SPAM (2, Funny)

JaredOfEuropa (526365) | more than 7 years ago | (#17022666)

Try modding these messages down next time, and you might get less of them...

Re:Mod UP if getting "XXXXXX wrote:" SPAM (1, Offtopic)

ScentCone (795499) | more than 7 years ago | (#17022668)

I've been seeing untold thousands of "XXXXX wrote:" through and blocked, both. They are all coming from desktop-looking IP addresses, so it's a bot army, methinks. Today, they were from Greece, the UK, some from the US, but the largest number were from Asia. Yes, started about a week ago. That, and a flood of messages with a reply-to that always starts with "debora[h]" and a domain name that looks scraped from industrial manufacturing lists somewhere. In other words, just another day in spamland. At least it's different, and I get to get angry all over again.

Important Because (2, Informative)

gt_mattex (1016103) | more than 7 years ago | (#17022562)

FTA

This ruling could prove to be a setback for other antispam activists for one major reason: It suggests that, thanks to the Can-Spam Act, state laws prohibiting fraudulent or deceptive communications won't be all that useful against junk e-mail.

Basically, as far as i understand it, states will have a much harder time of protecting their citizens from spam.

Re:Important Because (4, Insightful)

Kadin2048 (468275) | more than 7 years ago | (#17022706)

What's unfortunate in this case is that the activist has said that he's not going to appeal the decision due to lack of funds.

Currently there is a conflict between various state and Circuit courts as to whether the CAN-SPAM act overrides stricter State laws regulating unsolicited email. The only thing that's going to resolve the issue is a ruling from the USSC, barring further legislation to clarify the issue. If this guy were to push on, he could conceivably bring it before the Supreme Court and get a real decision; more importantly, he'd probably concentrate enough media attention on it so that even if the decision were to go in favor of the spammers, it might make a tougher anti-spam law a campaign issue in the national arena. Right now, the spammers win if people don't make noise.

Re:Important Because (1)

Fred_A (10934) | more than 7 years ago | (#17022986)

Right now, the spammers win if people don't make noise.
Or rather, given the way these things seem to work, "the spammers win if people who can afford to don't make noise".

Re:Important Because (1)

Rick17JJ (744063) | more than 7 years ago | (#17025718)

Perhaps some computer users organization should start a "Fight the Spamers" fund drive to pay for his legal bills, if he is interested in such an offer to help continue the fight. There are enough people out there who are fed up with spam that a "Fight the Spamers" legal aid fund might be feasible. I would be willing to contribute if it is clear that a well know responsible organization is supervising the collecting of funds.

In important legal fights like this, I would hope that there might be some organizations out there who would consider helping to help make it possible for the little guy to stand up against better funded rivals. I am also thinking about legal situations such as where MPAA allegedly sued someone who has never owned a computer for illegally downloading music and that type of thing. Several years ago there was also SCO's threats to sue Linux users for infringing on their "intellectual property" rights. After several years of IBM, Novell and Red Hat fighting them in court it is becoming increasingly obvious that that their claims were totally bogus. Those companies have probably spent millions of dollars (and are still spending money) fighting SCOs false accusations. The average person could not afford to do that. Now that the SCO threat is fading away, Microsoft has starting to hint that Linux is infringing on their "intellectual property" rights. Their proxy, SCO, has failed to destroy Linux, so they, presumably, now realize they need to try to do the job themselves. They don't want to actually have to compete with a competitor such as Linux in a fair open-market free enterprise sort of way. If some small company with little money ever does get sued by Microsoft, I hope that other larger open-source using companies and individual users will take up a collection to help pay for a real legal fight.

I have also heard of a case or two of whistle blowers who exposed government corruption having up spending their life savings on lawyers. In these general kinds of situations, the little guy should be able to afford to fight for what is right. I am not sure what help might or might not be available, but they are fighting a legal fight that is important to the country as a whole, so taking up a collection to help them would seem reasonable. I would like to see some organization try to raise the funds needed to help this guy fight against spam. They could also try to get some media publicity to get attention to their need for contributions.

Re:Important Because (1)

HomelessInLaJolla (1026842) | more than 7 years ago | (#17026172)

> Currently there is a conflict between various state and Circuit courts as to whether the CAN-SPAM act overrides stricter State laws

Referring to the ninth and tenth amendments (my favorites). The tenth (because, unless you're intimately familiar with them, it's easier to start here): "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

ie. There's no mention of spam or unsolicited mail in the US Constitution. Therefore, the regulation of such things is of no concern to the federal government and is reserved to the states who wish to address it or to the individual people (through local laws and/or courts).

The ninth, because it makes so much sense: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

ie. You cannot enumerate (interpret and expand) the interstate commerce clause in the powers of Congress as a free and open door to regulate anything and everything under the sun. Someone really needs to do a critical analysis of what was considered "interstate commerce" in the late 1700s. It probably had to do with formal licensing and probably dealt mostly with companies that shipped, traded, bought, stored, and sold goods en masse, or something which required a stamp or government inspections to deal in (eg. tea, tobacco, alcohol, etc.)--or something similar. You cannot do this with respect to spam because the right to regulate spam, not specifically mentioned in the Constitution, is reserved to the states or the people.

It took a little bit of googling but I managed to track down an article [articlev.com] that I came across, from a Slashdot sig, a year or two ago which goes into great detail how the Supreme Court, acting in the interest mostly of big businesses, has systematically castrated the power of these two Amendments and happily neutered the system of checks and balances which the founding fathers attempted to meticulously craft. The article is very well researched and footnoted and shows that things really began going downhill, for the rights of the states and people, quite quickly after WW-I. That's no surprise. After WW-I the US Gov't had recently hopped off the gold standard and was well on its way to becoming a debtor to the largest bankers and corporations in the world.

Re:Important Because (5, Interesting)

0x537461746943 (781157) | more than 7 years ago | (#17022756)

But how can a state protect you from spam when the problem is really global where the state and US laws don't always apply? Even if all the states came up with some extremely strict spam laws it would just push spammers to other countries and they would still end up using spam bots from around the world. As long as there is email there will be spam. All we can do is deploy the best spam fighting techniques we can around our mail servers to reduce it.

Re:Important Because (1, Funny)

powerlord (28156) | more than 7 years ago | (#17022934)

But how can a state protect you from spam when the problem is really global where the state and US laws don't always apply?


Oh, thats easy. ... Newt Gingritches new "Great Wall of Bureaucracy

Re:Important Because (5, Interesting)

ScentCone (795499) | more than 7 years ago | (#17022960)

But how can a state protect you from spam when the problem is really global where the state and US laws don't always apply?

The real key is to follow the money. For spam recipients in the US, most of the pitches are for goods/services that US consumers will hopefully by talked into buying. If the businesses that will transact the money are in the US, or have ties to people in the US, that's something to go for. If the pitches are for outright fraud (say, phishing, or the sale of bogus meds), then you've got a good case to take to law enforcement in whatever country is harboring the scammers. Sure, that isn't always helpful... but recall the recent article discussing how some companies (like Microsoft) are helping to fund the local PDs as they pass that research and evidence along to those other countries. It can't hurt.

Re:Important Because (1)

0x537461746943 (781157) | more than 7 years ago | (#17023620)

But do you really think they can be tracked down that easily? For an example... some of the spam is just stock pumping scams. There is no direct contact mentioned in the emails and trying to track them down when they are relayed through multiple spam bots will probably prove not very useful escpecially if some of the end points end up in countries that could care less about US laws. Even if we could locate and prosecute half of them(Which I don't think will ever happen) more will just pop up as others die off. With the current email system we will always have to setup spam filtering... I don't ever see spam going away because of some countries laws. I am not saying we shouldn't try to keep US companies from spamming but to think that spam will be greatly reduced because a mojority of the US has strict laws against it I think is just wishful thinking.

Re:Important Because (3, Insightful)

ScentCone (795499) | more than 7 years ago | (#17023750)

I am not saying we shouldn't try to keep US companies from spamming but to think that spam will be greatly reduced because a mojority of the US has strict laws against it I think is just wishful thinking.

You know what? I'd have better luck and less stress if I was ONLY trying to filter the stock pumping spam. If the people selling fake V1@gra, fake Rolexes, and fake everything else - all of the stuff that requires you to visit a web site and present payment - were taken down, it would hugely reduce the noise level. But more importantly, it's a matter of principle. Some fights are worth it, just because it sets a more civilized tone to overtly care about it and act with justice in mind that to just put up with it and decide that it will always be part of your life.

I agree that there needs to be a protocol change or two. But there is a LOT of inertia behind good old SMTP. And I'd rather null-route every packet from Romania, and lose the occasional piece of legit mail, than give in and say that some spamming asshat who happens to live there can litter me and all of my users with his trash. *blood pressure up*

Re:Important Because (1)

nine-times (778537) | more than 7 years ago | (#17023110)

Even if all the states came up with some extremely strict spam laws it would just push spammers to other countries...

So if all the spammers move to Indonesia, that fact can at least be used as another factor to improve spam filtering. I don't receive a lot of legitimate e-mail from Indonesia. And hey, if Indonesia has a problem with having their country's e-mail filtered strictly by the rest of the world, then they can can crack down on spammers themselves.

You're right, laws without the ability to enforce them won't solve the problem. However, without any laws, there isn't even the ability to push them out of the country, even if you know who they are

Re:Important Because (1)

idontgno (624372) | more than 7 years ago | (#17024450)

So if all the spammers move to Indonesia, that fact can at least be used as another factor to improve spam filtering. I don't receive a lot of legitimate e-mail from Indonesia.

Unfortunately, even if every spammer moves to Indonesia, they're not relocating their rented botnets to Indonesia. Sorry, no magic bullet there; the spams will continue to originate from a random worldwide assortment of pwn'd business servers in Europe, bulletproof hosters in China, and clueless lusers' trojanized home PCs on US broadband.

The only difference is that the spammers themselves will be outside of the easy reach of US law. That's a big plus, if you're one of the spammers. Extradition is so much more work, and in some third world countries you can easily evade detection or extradition with the connivance of local and national authorities if you have enough money.

It's a global internet. Spam is a global problem. There is no global solution. Therefore, spam will be eterenal. QED.

Re:Important Because (1)

T3CHKNOW (1012327) | more than 7 years ago | (#17023796)

Yeah, shoot to kill.

That's defeatist BS (1)

webweave (94683) | more than 7 years ago | (#17026068)

This is an American law served in America and only involving Americans. Sure you can't expect to police the world but we were told we had a law to protect us and now it's failed.

I usually hate to abdicate vigilantism but it looks like the law was written to protect criminals and I can see why when I look at the number of lawmakers on their way to prison. Maybe its time for real justice? Good advise might just be that if you find a spammer save yourself the trouble and just sneak up on them and blow them away like the sewer rats they are.

Is anyone really surprised that the law is broken?

duh (1, Insightful)

hyperstation (185147) | more than 7 years ago | (#17022616)

anti spam "activist"? wow, some people have really fucked up priorities. who cares?

Re:duh (5, Interesting)

ScentCone (795499) | more than 7 years ago | (#17022746)

anti spam "activist"? wow, some people have really fucked up priorities. who cares?

You could say the same thing about people who breed cats, clean up highway trash, attend scifi conventions, babble on slashdot, attend soccer matches, or obsess about their particular pet Linux distro. At least this guy's passion happens to involve punishing people who cost the economy billions of dollars in lost productivity, bandwidth, and resources.

Re:duh (0)

Anonymous Coward | more than 7 years ago | (#17022826)

anti spam "activist"? wow, some people have really fucked up priorities. who cares?

I'm glad there is others around that hate this scum of the earth. Dateline had a report about some of the illegal pharmaceuticals being sold. They bought some and found out it was made out of road paint. They even had pictures of the factory in China(or wherever) the crap was made.

These guys are criminals, and they need to go to a supermax prison. Not so much that it would deter some foreign spammers, but that many would get satisfaction of knowing that scum gets sent to jail. Most spam comes from US spammers anyway.

You're a troll. Sorry for feeding you.

Re:duh (3, Informative)

Anonymous Coward | more than 7 years ago | (#17023066)

The people who care are the mail system administrators. Last week my company got 7000 email messages, of which 5500 were rejected at the first level mail handler and about half the remainder were still spam. I have to let that much through to prevent false positives.

This doesn't include the dictionary attacks (15000 last week) or hacking attempts (54).

The cost in my time is hours per week in updates and security checks.

Re:duh (2, Interesting)

Anonymous Coward | more than 7 years ago | (#17023282)

before we get into a pissing contest about what company does what... i work for a major metro hospital. we are currently deleting about 65000 messages every 12 hours. this is stuff we consider obviously spam through a quite sophisticated algorithm. 65000 represents 86% of our email. now, ask me again why this matters.

Re:duh (1)

Pojut (1027544) | more than 7 years ago | (#17023570)

First off, points to you for having to deal with that kind of crap...my fellow IT folks are indeed in the trenches.

Now, that being said, you should be ELATED that you have to catch spam. You should be ready to squeeze off a load every time. Why?

Because for every spam email you are able to succesfully block and/or identify, it makes you look that much better! Think of it...some PEBKAC-stricken manager comes up to you one day:

"Hey Bob, how goes the IT stuff?"
"Eh, kind of frustrating...all this spam...we are finding it, it's just taking a while to take care of it all."
"Keep up the good fight, Bob!"

Re:duh (0)

Anonymous Coward | more than 7 years ago | (#17023688)

No, usually it's "Hey, I just got a spam!!! I thought you were filtering those damned things out!" I'm tempted to reconfigure the anti-spam software to allow me to disable individual users to retaliate each time they claim the anti-spam software doesn't work.

Re:duh (3, Funny)

Pojut (1027544) | more than 7 years ago | (#17024050)

Even better, you should tell them. Say to them "I am going to disable the spam filter for you for one week. At the end of the week, come back and tell me you don't think the filter works."

Re:duh (1)

element-o.p. (939033) | more than 7 years ago | (#17026666)

Not to mention the money spent on additional mail servers and hard drive space to handle the load of all the incoming spam.

I used to work at a rather small ISP (~50K users) that had two iPlanet servers to store and deliver customer e-mail and five FreeBSD/sendmail servers to filter and process incoming e-mail. When the spammers would kick off a campaign, they would essentially DoS our sendmail farm. The load averages on those servers would shoot to 20+ (anything over 1 meant the servers were working hard) and legitimate e-mails would be delayed by an hour or more. We blacklisted anything we could, but the only thing we did that really helped was throw more servers into the farm.

Here's what I don't understand... (5, Interesting)

SeekerDarksteel (896422) | more than 7 years ago | (#17022702)

If he sued a company under an existing law, and a court later found that a federal law outweighed the state law, how can the person suing possibly be held responsible? How can it be considered his responsibility to know the judgement of the circuit court before he even filed the case in the first place?

Re:Here's what I don't understand... (2, Informative)

voice_of_all_reason (926702) | more than 7 years ago | (#17022992)

I think because civil courts deal with "liability" not "responsibility" (that's criminal).

Regardless of you being in the right, you still owe the other party for court/other costs. See also: OJ

Re:Here's what I don't understand... (4, Informative)

Intron (870560) | more than 7 years ago | (#17023446)

The well-named federal CAN SPAM law explicitly preempts state and local laws to allow spamming, so the Oklahoma law was already superceded. By providing a way to reach them and a working opt-out link, Omega met the low bar set by CAN-SPAM. The fact that you would have to be crazy to click on an opt-out link in a spam email didn't matter to Congress, and matters even less to a judge interpreting Congress' intent.

The point is: complain to Congress about the bad law, not the judiciary who have to play the hand that they're dealt.

Re:Here's what I don't understand... (0, Troll)

davewalden (1028118) | more than 7 years ago | (#17023990)

The judiciary is just as corrupt as the law makers.

Activist Judges? (1)

FatSean (18753) | more than 7 years ago | (#17025380)

I dunno, it's tough to argue with the decisions of a high court...if you've got an argument you can appeal after all.

Sounds to me like a lame law being faithfully upheld by the judiciary...to the deteriment of the people.

Re:Here's what I don't understand... (1)

HomelessInLaJolla (1026842) | more than 7 years ago | (#17026220)

> The well-named federal CAN SPAM law explicitly preempts state and local laws

Which is technically unconstitutional but, hey, since when has that ever stopped a federal level bureaucrat from justifying another vacation, errrr... subcommittee meeting in Hawaii.

Re:Here's what I don't understand... (1)

sribe (304414) | more than 7 years ago | (#17026318)

Which is technically unconstitutional...

Well, actually, it's pretty obvious that this involves interstate commerce.

Re:Here's what I don't understand... (1)

HomelessInLaJolla (1026842) | more than 7 years ago | (#17026464)

Have you read the ninth amendment? It specifically forbids the enumeration of the consitution (ie. the interpretation and expansion of powers). Interstate commerce is not a free pass to regulate everything under the sun.

I'd really like to see a critical analysis of what qualified as "interstate commerce" in the late 1700s. I guarantee you that there was a very definite legal setting for it--it probably had something to do with federally issued stamps or business licenses.

A very good documentary of how the "interstate commerce" trojan/backdoor has been used to systematically decimate the intent of the founding fathers is here [articlev.com] .

Re:Here's what I don't understand... (0)

Anonymous Coward | more than 7 years ago | (#17027072)

Oh you want to get consitution, huh?
SPAM is speech. Consitution doesn't make any mention of "commercial vrs political vrs other" speech, just speech. So, any law against it, barring fraud, obsenity laws and public safty concerns, is unconsitutional. So the feds and states would never have gotten away with either CAN SPAM or what this silly state was trying to do.

Re:Here's what I don't understand... (3, Interesting)

sribe (304414) | more than 7 years ago | (#17026398)

The well-named federal CAN SPAM law explicitly preempts state and local laws to allow spamming, so the Oklahoma law was already superceded.

Read the article more carefully. CAN SPAM explicitly allows for state laws dealing with "falsity or deception in any portion of a commercial electronic mail message." But this judge decided that a falsified header and return address were "immaterial errors" and that a strict reading of that portion of CAN SPAM was "not compatible with the structure of the Can-Spam Act as a whole." In other words, strained rationalization of the result the judge wished to reach.

forward spam (3, Insightful)

Anonymous Coward | more than 7 years ago | (#17022714)

In that case, I guess the judges shouldn't object if we forward our spam to them.

Re:forward spam (1)

cdrudge (68377) | more than 7 years ago | (#17024492)

Only if you have your contact information at the bottom so that he can request, and ignored, to be removed from the mailing list.

Re:forward spam (1)

brouski (827510) | more than 7 years ago | (#17024960)

Only if you have your contact information at the bottom so that he can request, and ignored, to be removed from the mailing list.
Ignored? There's someone at the other end reading that mail! That address just tripled in value! Yeehaw!!!

really? (0)

User 956 (568564) | more than 7 years ago | (#17022762)

allows a spamming company to procede with their suit against a spamfighter

Really? Why? Is the spamfighter bald? [procede.com]

Re:really? (1)

scdeimos (632778) | more than 7 years ago | (#17023698)

Don't bother. None of the editors around here have even seen a dictionary, let alone realize that "procede" doesn't exist in any of them.

Re:really? (2, Funny)

User 956 (568564) | more than 7 years ago | (#17023964)

Don't bother. None of the editors around here have even seen a dictionary, let alone realize that "procede" doesn't exist in any of them.

Many would argue that use of "procede" is perfectly cromulent.

Re:really? (0)

Anonymous Coward | more than 7 years ago | (#17024252)

They need to start using Firefox 2.0.

..of course it does. (4, Informative)

Atlantis-Rising (857278) | more than 7 years ago | (#17022818)

Read the judgement- there's almost no question in my mind- this case was extremely clear cut. On page six, quoted is the Can-SPAM act in which


This chapter supersedes any statute, regulation, or rule of a state or political subdivision of a state that expressly regulates the use of electronic male to send commerical messages...

is quoted. That strikes down the application of Oklahoma's law, which the judge ruled
...is not limited to inaccuracies in transmission information that were material, lead to detrimental reliance by the recipient, and were made by a sender who intented that the misstatements be acted upon and either knew them to be inaccurate or was reckless about their truth.


And then, the judge ruled that it didn't violate the CAN-SPAM act (The apellant, mummagraphics argued that the senders of the e-mails mislead mummagraphics as to the origin of the message, when the judge pointed out that it was a marketing e-mail- hence, it had all sorts of links and phone numbers and stuff to contact the people who had sent it.)

With all that established, the appellants had no case.

There's nothing fundamentally wrong with this, unless you have a problem with the doctrine of preemption- and if you do, that's a much, much larger issue than just spam e-mail.

Re:..of course it does. (2, Informative)

kidtwist (726601) | more than 7 years ago | (#17022950)

There's nothing wrong with the ruling except that, as someone says in the article, it "vindicates those of us who view Can-Spam as pointless and potentially dangerous legislation."

Re:..of course it does. (4, Insightful)

Atlantis-Rising (857278) | more than 7 years ago | (#17023232)

Well, of course. If you think the law is wrong, then obviously there's a problem- but that doesn't make the ruling bad.

Re:..of course it does. (1)

jrumney (197329) | more than 7 years ago | (#17026654)

Amendment X - Powers of the States and People. Ratified 12/15/1791. Note

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Now, I'm no expert on the US constitution from my position as an outside observer, but I wasn't aware that Federal law could trump State law in this regard. Does the consititution explicitly allow the government to pass laws protecting spammers?

Re:..of course it does. (1)

Red Flayer (890720) | more than 7 years ago | (#17022994)

Read the judgement- there's almost no question in my mind- this case was extremely clear cut. On page six, quoted is the Can-SPAM act in which
This chapter supersedes any statute, regulation, or rule of a state or political subdivision of a state that expressly regulates the use of electronic male to send commerical messages...
Oh yeah? What about the use of electronic female? That's not even addressed in the statute, and I suspect that many of us use eletronic female very often.

Re:..of course it does. (2, Insightful)

whoever57 (658626) | more than 7 years ago | (#17023478)

That strikes down the application of Oklahoma's law, which the judge ruled ...is not limited to inaccuracies in transmission information that were material, lead to detrimental reliance by the recipient, and were made by a sender who intented that the misstatements be acted upon and either knew them to be inaccurate or was reckless about their truth.
And then, the judge ruled that it didn't violate the CAN-SPAM act (The apellant, mummagraphics argued that the senders of the e-mails mislead mummagraphics as to the origin of the message, when the judge pointed out that it was a marketing e-mail- hence, it had all sorts of links and phone numbers and stuff to contact the people who had sent it.)
Well, the judge appears to have ignored part of the law, which states:
`(a) IN GENERAL- Whoever, in or affecting interstate or foreign commerce, knowingly--
..
`(3) materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages,
The fact that the contact information was in the email is immaterial. The sender violated the plain text of the act.

Misquote of the statute (5, Informative)

Animats (122034) | more than 7 years ago | (#17023700)

That's a deceptive misquote of the statute, which actually reads

This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.

The judge then took a narrow view of that language. His reading of the CAN-SPAM act is that "falsity or deception" above must rise to the level of a tort, and that the false information must constitute a "material deception". He then looks at the language of the CAN-SPAM act's criminal provisions, which prohibit the initiation of a "transmission to a protected computer of a commercial electronic mail message if such person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message 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". Applying that language to divine the intent of Congress, the judge then rules that deceptive material in a spam e-mail must be believed by the recipient, and about a material fact, to be actionable.

Now, given the facts in this case, that's not totally unreasonable. The e-mails bore a return address of "cruisedeals@cruise.com", which was non-functional. But the messages were, in fact, advertising "cruise.com" and were in fact initiated by the operators of "cruise.com". So this is not an anonymous spammer.

This is key. The CAN-SPAM act protects spammers who properly identify themselves. (Those are today routinely caught by spam filters.) That was the clear intent of Congress, based on lobbying by the Direct Marketing Association. There was no willful obfusication by the sender here; it was clear that "cruise.com" was behind all this.

This decision doesn't provide any relief for anonymous spammers and scammers.

Re:Misquote of the statute (1)

jfengel (409917) | more than 7 years ago | (#17024776)

Was the email marked with ADV:? If not, it's in violation of the CAN-SPAM act.

Re:..of course it does. (1)

HomelessInLaJolla (1026842) | more than 7 years ago | (#17026268)

> This chapter supersedes any statute, regulation, or rule of a state or political subdivision of a state that expressly regulates the use of electronic male to send commerical messages

Spelling Nazi: "male" is spelled incorrectly in this context

Point two: I guess the author of that chapter never read the Tenth Amendment to the US Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

There's little excuse for writing a law which explicitly attempts to override the only document legitimizing the authority with which the law is passed.

The federal government is horribly out of control.

Re:..of course it does. (1)

Atlantis-Rising (857278) | more than 7 years ago | (#17026570)

It would seem to me that this falls absolutely under the Interstate Commerce Clause, and that that provision is totally redundant- because this matter is solely of federal jurisdiction anyway. It was only placed there, I figure, to do exactly what it did here- stop the state governments from screwing with something that is definately of federal jurisdiction.

Re:..of course it does. (1)

hairpinblue (1026846) | more than 7 years ago | (#17026792)

> It would seem to me that this falls absolutely under the Interstate Commerce Clause

That's the problem: "it would seem to me" does not mean that it is. Anything and everything under the sun seems to fall under interstate commerce because commerce [m-w.com] , in a common definition, can mean nearly anything and everything. An important critical question to ask yourself is,"What isn't 'commerce'?" If your set of things which aren't commerce is pretty darn small that is a certain sign that your definition is too broad since it's obvious that the founding fathers did not mean for their government to be able to regulate anything and everything. That's precisely what we fought the Revolutionary War to get away from--an overbearing British government. Why on earth would they go ahead and recreate the same thing?

It does not fall under the Interstate Commerce backdoor/trojan horse. The Ninth Amendment specifically prohibits the gratuitous overinterpretation (aka "enumeration") of Constitutional powers to mean things that they weren't meant to mean. If one could conduct a critical analysis of "interstate commerce" in the late 1700s they would find that it probably referred to specific types or sets of commerce--likely those which required a federal stamp or federal business license.

When you say "interstate commerce", the average citizen will think of anything which is moving between states--absolutely anything. That doesn't make it the proper legal definition. The federal level politicians, and their business bedfellows, have been exploiting this popular ignorance for years. A detailed, well-documented, and well annotated analysis of the "interstate commerce" rootkit, and how it has been used to decimate the Consitution, is found here [articlev.com] .

His Honor (1)

Rob T Firefly (844560) | more than 7 years ago | (#17022824)

I wonder if Judge James Harvie Wilkinson III would be interested in letting me deposit sixty millions of American dollars into his bank accout for my deceased Nigerian prince brother while increasing the size of his manhood and curing any desease.

Re:His Honor (1)

beadfulthings (975812) | more than 7 years ago | (#17023228)

Not unless you allow him to invest the proceeds in all those hot Stocks in Play that are ready to explode/take off/blow up or whatever else they're going to do.

J. Harvie Wilkinson III - what a surprise... (5, Informative)

isaac (2852) | more than 7 years ago | (#17022866)

J. Harvie Wilkinson III wrote this opinion in the 4th circuit. He's Reaganite authoritarian on the most "conservative" appellate bench in the country. You might remember him as the brave patriot who upheld the right of the executive branch of the US Government to indefinitely detain any US Citizen with no access to counsel, court, or any legal process to challenge that detention.

Basically, the 4th circuit is an incredibly hostile place for "the little guy" when challenging a big business.

-Isaac

Re:J. Harvie Wilkinson III - what a surprise... (1)

TubeSteak (669689) | more than 7 years ago | (#17023218)

The only catch is that... anything done in the 4th Circuit only applies to the 4th circuit.

In other words, if you sue someone in the 5th Circuit, based on some State SPAM law & the defendant doesn't bring up the same objection... you get to win.

Though I can't imagine any Spammer *not* using this logic in the future.

Re:J. Harvie Wilkinson III - what a surprise... (1)

DoctaWojo (654967) | more than 7 years ago | (#17023424)

It's not "get to win," it's "might have a chance of winning."

Re:J. Harvie Wilkinson III - what a surprise... (1)

jrockway (229604) | more than 7 years ago | (#17025880)


The only catch is that... anything done in the 4th Circuit only applies to the 4th circuit.

In other words, if you sue someone in the 5th Circuit, based on some State SPAM law & the defendant doesn't bring up the same objection... you get to win.


What happens if the suit is filed in a Circuit City? *groan*

Re:J. Harvie Wilkinson III - what a surprise... (1)

chazzf (188092) | more than 7 years ago | (#17023998)

I take it, then, that you disagree with the court's interpretation of federal law?

Irony (3, Funny)

Cauchy (61097) | more than 7 years ago | (#17022882)

Ironically enough, when I read the article, and advertisement for www.cruise.com, the spammer in question, appeared at the bottom of the page. I wonder how many people will read this article and then feel inspired to shop for a cruise from them?

RICO (1)

Citizen of Earth (569446) | more than 7 years ago | (#17023058)

I can't understand why spammers aren't prosecuted as organized criminals. They hijack other people's computers as a business.

Re:RICO (1)

RoboRay (735839) | more than 7 years ago | (#17024144)

"I can't understand why spammers aren't prosecuted as organized criminals."

I can't understand why more of them aren't simply shot.

Re:RICO (1)

Mister Whirly (964219) | more than 7 years ago | (#17024628)

Because they haven't committed any capital offenses.
"In most places that practise capital punishment today, the death penalty is reserved as a punishment for premeditated murder, espionage, treason, or as part of military justice."
http://en.wikipedia.org/wiki/Capital_punishment [wikipedia.org]

Re:RICO (1)

wheelgun (178700) | more than 7 years ago | (#17025024)

He mentioned shooting. I saw nothing about execution by the state.

Re:RICO (1)

RoboRay (735839) | more than 7 years ago | (#17025174)

Correct. I was referring to certain events in Russia on how to properly "reward" a spammer for his efforts.

Re:RICO (1)

Mister Whirly (964219) | more than 7 years ago | (#17025850)

Personally, I'd rather have Spammers around than the Russian Mafia - Spammers can be blocked by filters while the Russian Mob requires bulletproof glass and teflon to block.

Re:RICO (1)

RoboRay (735839) | more than 7 years ago | (#17026718)

I'll take the mafia. At least they don't have the courts on their side.

Re:RICO (1)

Mister Whirly (964219) | more than 7 years ago | (#17026776)

Don't be sure sure. Judges can be bought, just like anything else.

Re:RICO (1)

Dunbal (464142) | more than 7 years ago | (#17027296)

Mob requires bulletproof glass and teflon to block.

      You can't stay behind your bulletproof glass forever. When you come out, we'll be waiting.

Is It Defamation ? (1)

Nom du Keyboard (633989) | more than 7 years ago | (#17023072)

Is it defamation if it's posted as an opinion? Something like, "Hey, in my opinion this looks like spam to me. What do you think?" Aren't opinions protected?

And isn't spam any unsolicited e-mail? How this didn't violate CAN-SPAM is amazing. Like to see this go to the SCOTUS.

Re:Is It Defamation ? (1)

arniebuteft (1032530) | more than 7 years ago | (#17024380)

It's a sticky area of the law. The statement "Bush is an idiot" will always be protected opinion. The statement "In my opinion, Mr. Smith is a nasty pedophile" will never be protected as opinion (though it may be OK for other reasons). Simply adding the phrase "in my opinion" to a statement that is essentially a fact, offers no protection. Courts look at a number of factors to see if a statement is opinion or fact, including context, whether the statement is capable of a provable or unprovable meaning (usually the hallmark of a 'fact'), and so on.

Yeah! (0)

Anonymous Coward | more than 7 years ago | (#17023138)

Finally some sanity from the judiciary.

Hardly surprising. (1)

mmell (832646) | more than 7 years ago | (#17023174)

The judge wouldn't want to endanger his primary source of r0ga1n, v1agra and c!a1is now, would he?

Thanks GW Bush (0)

Anonymous Coward | more than 7 years ago | (#17023268)

From TFA

"The Can-Spam Act essentially protects the e-mailer; it doesn't protect us," Mumma said.

Yup, typical Bush bill. They say it's for one thing but actually for big business.

"In response to your email. (5, Interesting)

Anachragnome (1008495) | more than 7 years ago | (#17023286)

.....I have come to the decision to NEVER do business with your company, nor any of its subsidiaries. Your decision to utilize a means of advertising at the expense of consumers highlights the general business attitude your company has taken. Further emails to me will only reinforce this opinion, and quite possibly trigger a public effort, on my part, to make known to as many consumers as possible, via the internet, and any other means available to me, that your company is taking part in illegal activities (email advertising) at the expense of the very customers you are trying to do business with."

I send this to as many spam adverts as I can. I simply cut and paste the exact same reply. And NOT to the address contained in the advert. I look up the SALES dept. address and send it to THEM. In EVERY instance I have done this, the mails stopped.

Re:"In response to your email. (0)

Anonymous Coward | more than 7 years ago | (#17023776)

Really? I'm impressed. But aren't most spam URLs just porn sites that make money off of 6000 banners? Or do you read through all the spam and decide which ones actually have sales departments?

Re:"In response to your email. (1)

Proud like a god (656928) | more than 7 years ago | (#17024176)

Don't you mean unsolicited email advertising? I like some of the online deals I get emailed, from those I subscribed to.

Re:"In response to your email. (1)

mojodamm (1021501) | more than 7 years ago | (#17025810)

Yeah, I can see it now, "Really honey, I'm only looking through these porn sites to find the sales department!"

Re:"In response to your email. (1)

jrockway (229604) | more than 7 years ago | (#17025940)

Heh, sometimes I subscribe to these things and then realize that I didn't want them. Instead of figuring out how to unsubscribe, I just report them to spamcop instead. Much easier.

Re:"In response to your email. (1)

LFS.Morpheus (596173) | more than 7 years ago | (#17026152)

Which just reinforces my opinion that spamcop is a horrible service...

Don't bother emailing the judge (3, Insightful)

00Dan (903094) | more than 7 years ago | (#17023376)

I know a few of you will probably say "What's the judges email address, let's get him some spam"

It will not work. The judge probably has the best spam filter money can buy- an assistant that prints off legitimate emails for him to read, or deletes spam every morning for him.

That's true for just about anyone who is involved in legislation that can stop spam. Except for their home email account, they are probably ignorant of what the real world is like.

Spam (0)

Anonymous Coward | more than 7 years ago | (#17023406)

I, for one, believe that the judge took the spam companies offer to help him enlarge his penis.

Re:Spam (2, Funny)

Dunbal (464142) | more than 7 years ago | (#17027238)

the judge took the spam companies offer to help him enlarge his penis.

      Perhaps he got his Un1v3rsi+y d3gRe3 online, too...

Spamalot (1)

edwardpickman (965122) | more than 7 years ago | (#17023442)

For some reason my business email which I rarely use started getting carpet bombed with spam a few weeks ago. I get up to fifty emails a day in the bulk folder and some in the main folder. I'd ignore the bulk folder but since it's primarily for business half the needed emails ends up in the bulk folder and I have accidentally deleted good emails. The odd thing is I have a personal email with the same service that gets maybe half a dozen a day. I rarely give out my business one but they got the address off some site because they are using my screen name in the heading. Definately automated because it's not a normal name. I can't believe nothing is being done about this. Business is loosing hundreds of millions, most estimates are in the billions a year, in time lost dealing with it let alone people that get suckered into the scams. If people were getting fifty phone calls a day from salesmen the issue would get resolved. The joke is more email is sent than phone calls so it's a bigger issue. It may seem like an inconvience but with looses between the scams and lost time running into the billions if not tens of billions a year it should be a priority with the government. In a sense ignoring the loss of life looking at strickly the dollar amounts involved we're talking about several 911s a year and no one is doing anything about it.

Federalism (3, Insightful)

Metasquares (555685) | more than 7 years ago | (#17024028)

The 4th Circuit may have laid waste to all of those efforts.
IMO, the court is blameless here; they're doing their job and federal laws do tend to trump state ones. It's the CAN-SPAM act that laid waste to those efforts.

Re:Federalism (1)

arniebuteft (1032530) | more than 7 years ago | (#17025508)

Especially when those federal laws explicitly state that they preempt state law. Noting the opinions here, it seems the old saying rings true, "an activist judge is any judge whose rulings you disagree with".

Re:Federalism (1)

HomelessInLaJolla (1026842) | more than 7 years ago | (#17026394)

Except that it's a violation of the ninth and tenth amendments for federal laws to overrule state laws. In the realm of corruption I guess nothing beats openly subverting the very document which provides any semblance of legitimate authority.

Mist Net (1)

Roger_Wilco (138600) | more than 7 years ago | (#17024132)

We need to set up mist net [wikipedia.org] throughout the homes of spammers, and put them out of our misery. A bounty on spammers seems the only way to solve the problem. :)

We cannot claim the reward unless we have 51% of the carcass! —Apu

Fr1st 4sot (-1, Redundant)

Anonymous Coward | more than 7 years ago | (#17025028)

Whether you over tO yet another

so much for federalism (3, Informative)

drDugan (219551) | more than 7 years ago | (#17025862)

as I have said many times, america is over [slashdot.org]
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