Virginia Supremes: Spam is not 1st amendment speech

[rconner]

A local story (more or less) for me, but this news was published on the left coast (web link).

A divided Virginia Supreme Court affirmed the nation's first felony conviction for illegal spamming on Friday, ruling that Virginia's anti-spamming law does not violate free-speech rights.

(...)

Prosecutors presented evidence of 53,000 illegal e-mails Jaynes sent over three days in July 2003. But authorities believe he was responsible for spewing 10 million e-mails a day in an enterprise that grossed up to $750,000 per month.

Jaynes was charged in Virginia because the e-mails went through an AOL server in Loudoun County, where America Online is based.

"The court rejected Jaynes' claim that Virginia's law violates the interstate commerce clause because it regulates activity outside Virginia. Justice Steven Agee wrote that "the effects of this statute on interstate commerce are incidental and do not impose an undue burden."

-- rick

[Merlyn]

Like I have been saying in my signature for years.

[Devilwolf]

A local story (more or less) for me, but this news was published on the left coast (web link).

Justice Elizabeth Lacy wrote in a dissent that the law is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."

Does that mean that Justice Lacy would be OK if I called her every 10 minutes 24/7 to tell her about my new Religious and Political Party?

Or does that means that I can kick in her front door to leave religious tracts in her house?

"Unfortunately, the state that gave birth to the First Amendment has, with this ruling, diminished that freedom for all of us," Jaynes' lawyer, Thomas M. Wolf, said in a written statement. "As three justices pointed out in dissent, the majority's decision will have far reaching consequences. The statute criminalizes sending bulk anonymous e-mail, even for the purpose of petitioning the government or promoting religion."

1) Why should the govt listen to an anonymous petition?

2) Banning spamming for Jesus is not a bad thing.

3) Jaynes is a scumbag, and he should (and I am not joking) be anally raped in prison by a HIV+ inmate.

[rconner]

With due respect to Justice Lacy, I believe that the content of many spams, taken in isolation, could be considered protected free speech (unless perhaps it involved lawbreaking); the spam CONTENT does not have to be "religious" or "political" to warrant such protection (i.e., it could be commercial). What the justice fails to grasp, however, is that is the manner of delivery that is objectionable. Stealing services from others (via botnets) and forcing unwilling recipients to directly subsidize delivery of the messages (through their payments to their ISPs for mail hosts and backbone access) is unfair and criminal behavior. Just because you have a free speech right has never meant that others are obliged to pay for your speech.

At least hers was a minority opinion here.

-- rick

[Wazoo]

Does that mean .....

The way I read that boils down to the problem of 'defining' spam yet again. The phrasing of her comments targets the 'prohibits .. ALL ....' issue.

[loafman]

1) Why should the govt listen to an anonymous petition?

If the petition is valid, why not? There is a vast difference between a petition emailed to the people that can, or should, do something about it and email that goes out to everyone. One is spam, the other is legit.

2) Banning spamming for Jesus is not a bad thing.

I agree. Even Amber Alerts are spam if they are not requested.

3) Jaynes is a scumbag, and he should (and I am not joking) be anally raped in prison by a HIV+ inmate.

That would be worse than his crime unless he was guilty of rape himself.

[Lking]

A local story (more or less) for me, but this news was published on the left coast (web link).

Jaynes took the VA spam law back to the VA Supreme Cort again and won this time because the law didn't target only "commercial speech." I don't have a reference yet but they are hipping the story on NPR.

[rconner]

Story here: http://www.spamsuite.com/node/423

"The Virginia Supreme Court has overturned the conviction of Jeremy Jaynes saying that the "statute is unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mails including those containing political, religious or other speech protected by the First Amendment to the United States Constitution."

Not sure what to make of this, I am still reading. Doesn't seem like good news, since Virginia has (or had?) a pretty stiff spam law. Maybe this suggests that trying to prosecute spam based on its content is not the best way to go -- prosecutors need to focus on things like computer subversion, wire fraud, etc. rather than just the spam angle.

-- rick

[Lking]

<snip>-- prosecutors need to focus on things like computer subversion, wire fraud, etc. rather than just the spam angle.

Guess your right Rick. Burns me but that's the way they got the mob, not for what they did but on taxes. Of course the difference is that what the mob did (rum running, drugs, extortion) was illegal, and it seems spam isn't. Well not in Virginia.

[Lking]

Here is the Washington Post's article from 13 Sep 08.

"Virginia Attorney General Robert F. McDonnell ( R ) promptly said he would appeal the case to the U.S. Supreme Court."

"Justice G. Steven Agee, who has since moved to the U.S. Court of Appeals for the 4th Circuit, wrote the unanimous opinion for the court. "The right to engage in anonymous speech, particularly anonymous political or religious speech, is 'an aspect of the freedom of speech protected by the First Amendment,' " Agee wrote, citing a 1995 U.S. Supreme Court case." "By prohibiting false routing information in the dissemination of e-mails," the court ruled, Virginia's anti-spam law "infringes on that protected right."

The good news "The ruling affects only the Virginia statute."

[Miss Betsy]

The internet is truly 'free' and cannot be controlled by 'law' - the good news is that no one can harm you for not being of the same mind or force you to share their sentiments.

That's why blocking is 'the' way to control unwanted email. Note that I didn't even say unsolicited or bulk.

The problem with spam is that it is a nuisance and a time waster in bulk. Bulk emailers, even those who just have a very large family, should be required to use software that identifies their email as bulk. Then everyone can block all bulk email except for those that they want to get. Any IP address sending bulk email that is not identified is blocked at the server level.

But I am not so sure that 'anonymous' is a criterion for free speech. People need to be able to communicate freely without someone watching them (the government cannot open letters, tap phone lines without a warrant) and cannot be prosecuted or denied the ability to publish whatever they wish to (on the internet, though, that's a website, not email). Contributors to a 'free speech' website can be anonymous and their names only obtained with a warrant, but no one has the right to invade my private space - even if they do it with masks. I also think that using my email address is not a legal right. I am not sure what the legal position on posing as another person without monetary gain is, but since most spam does have a payoff, it should be just as illegal as someone using my ID to buy liquor.

Miss Betsy

[showker]

This case is a travesty, but a predictable one.

Any time laws are vague or encumbered by so many criteria, other cases can be brought to light which, through legal manipulation, can influence decisions. Clear testament that the laws are far too complicated.

If you will read the actual case, you will see clearly that this criminal is obviously guilty. He confessed to such. Regardless of the "Freedom of Speech" card, he had the addresses, he sent the spam, he forged headers and IP addresses ... he is an obviously guilty criminal, and did indeed commit the crimes Virginia sentenced him for in the first place.

> While executing a search of Jaynes’ home, police discovered a

> cache of compact discs (CDs) containing over 176 million full

> e-mail addresses and 1.3 billion e-mail user names.

> The search also led to the confiscation of storage discs

> which contained AOL e-mail address information and other

> personal and private account information

> for millions of AOL subscribers.

Download the actual case court ruling: Virginia_Spam.pdf

Read the AP story

When will we stop protecting, aiding and abetting the criminals?

The internet is truly 'free' and cannot be controlled by 'law'.

A sad note for the millions of cybercrime victims who have lost billion$ because the "internet is free"

See: Hostile Web Sites Go Free

and here's what a "free" internet without law and accountability brings you ... this short video from HostExploit

There can be no doubt that the internet must be regulated

Accountability must be restored to the Domain Naming System and ICANN.

:angry:

[Lking]

I am sure you are passionate, but I think you need to take a deep breath and make sure you say what you mean.

If you will read the actual case,

Accusing others of having an un-informed opinion does not win converts. Thank you for your references. Yours added to Rick's and others of course adds to the picture.

you will see clearly that this criminal is obviously guilty. He confessed to such.

I don't believe there was ever a question about whether or not he sent the email. The question has always been whether or not what he did should be agents the law.

Regardless of the "Freedom of Speech" card,

Fortunately, he was able to play the "Constitutional" card. I'm glad to know it still works and may still be available when/if I need to use that "card" when I need to protect my rights. (Sorry, sarcasm does not add to the discourse.)

he had the addresses, he sent the spam, he forged headers and IP addresses ... he is an obviously guilty criminal, and did indeed commit the crimes Virginia sentenced him for in the first place.

Again, the question that the Virginia Court addressed this month was not whether or not he had the addresses or sent the email, but, was that email spam and should, what he did, be agents the law. He may be a criminal, but at this point in time sending spam is not what he is guilty of.

Writing laws to control spam or other cybercrimes is a new area of law. The VA spam law was the first in the Nation. As more laws are written and cases tried in the courts, the laws will be refined. As a result they may become more "encumbered by" criteria to thread the line between what "we" want to be illegal and what should be legal. During the refinement process some may not be convicted that, in retrospect, should. AND that is the way it should be.

Back in an earlier phase of my life, a ground pounding Marine said his view of air defense was to "Shoot them all down, then sort it out on the ground." That approach has the advantage of simplicity, but being in the Air Force, I felt there were disadvantages. I feel the same way about our First Amendment Rights, a finer sieve is better.

[Miss Betsy]

<snip>

> The search also led to the confiscation of storage discs

> which contained AOL e-mail address information and other

> personal and private account information

> for millions of AOL subscribers.

<snip>When will we stop protecting, aiding and abetting the criminals?

I would think that there would already be a law on the books against holding private account information that isn't yours. That is something that there could be a law against, I would think.

However, any laws that are aimed at the content of websites or emails start a slippery slope where governments can control what people are allowed to use the internet for. As I said, I don't think anonymous counts as part of the criteria for free speech in email, but as long as individuals can refuse email based on blocklists, that takes care of the problem. Not only do people have the right to send any email they want, but people have the right to refuse any email they want. Free speech does not mean that someone can broadcast their viewpoint into my house without any control on my part to refuse to listen or to be inconvenienced (for instance, I am sure that it is against the law to stand just outside my property line and broadcast a message that I cannot help hearing). Few people, except businesses, want to accept all email just in case there is an unsolicited email that they want to receive. If blocking at the server level were the norm, then the sender would receive an NDR from any legitimate email that is caught and can use alternate means to make contact.

The freedom of the internet is far beyond the concept of freedom that we have offline because no force can be applied (or law enforcement) to make any individual receive email that is unsolicited and unwanted. It does make it difficult to also prevent anyone from sending as many emails as they want to and to whomever they want. However, as long as blocklists are legal, email from certain IP addresses can be blocked. Other senders from that IP address will have the free choice to continue to use that IP address or move to one where unsolicited email is not permitted to be sent.

As long as there are no rules against content, individuals are completely free to express themselves on whatever subjects they want to without interference on websites (again, completely fraudulent websites, such as the phishing websites must contravene existing laws and can be prosecuted. If they don't, then laws could be made against them.) At the same time, other individuals are free to either learn, or hire someone, to check on websites to make sure that they are what they want to view and block those that they do not want.

Ignoring the criminals (and being able to, unlike offline where they can force their criminal activities on you) is much the best way to render them impotent.

Miss Betsy

[showker]

Forged headers, forged sending address, misleading subject lines, bulk server logs... the email fulfilled 9 out of 10 criteria of the crime.

Sheesh.

No use to even try.

I don't believe there was ever a question about whether or not he sent the email. The question has always been whether or not what he did should be agents (against?) the law.

No, what he did IS against the law.

Whether or not it "SHOULD" be against the law is not supposed to be a matter to legislate from the bench.

Ignoring the criminals (and being able to, unlike offline where they can force their criminal activities on you) is much the best way to render them impotent.

That's the spirit!

Rape, aids and hunger... so long as they don't happen to you,

can be ignored - rendering them impotent.

[Miss Betsy]

<snip>

Rape, aids and hunger... so long as they don't happen to you, can be ignored - rendering them impotent.

Those are offline crimes and can be forced on innocent people. There are already laws against them (except for hunger). Online, one cannot be forced to accept, or read, an unsolicited email (Ideally, if users could choose blocking, then they won't be bothered except by those who are not listed yet and they can report them so that they will be listed.)

And, then, for those who can choose (or insist on reliable email), the criminal is rendered impotent. One cannot protect all those who are too foolish or ignorant or greedy or willing to buy criminal products or information (such as child porn). For them, there are laws on the books which, at least, prosecute those who scam them and possibly, laws which will get them if they use illegal services. However, these services and scams have been around since close to the beginning of time. It is unlikely that criminals won't find those who are gullible or want their products online as well as offline. The honest and decent, however, can ignore them easily online just as they can throw away 419 scams sent snail mail. Although 419 scammers find the scam so lucrative that they can take the time to send emails one by one or by small batches so they aren't caught by filters, the other scams are not so lucrative and wouldn't last. If it were against the law to plagarize websites (a reasonable law), then those phishing websites could be taken down. That has nothing to do with free speech. The porn will probably continue, but again blocking would probably take care of it. On Hotmail now very few spam make it to the inbox. And, aren't a very high percentage of spam sent via bots on compromised computers? One could make compromised computers illegal, just as one gets a ticket for a missing headlight. Not a big deal, but would make ISPs more careful about their users.

If blocking were used by more server admins as the primary method of spam filtering, then legitimate users who got blocked would quickly find a better email service and soon legitimate users would be able to email other legitimate users without hindrance by content filters.

The internet can be 'free' without force against those who would abuse it. All internet users have to do is ignore them. Those who allow themselves to be abused are also free to do so. There are enough laws on the books already to prosecute those who are really criminals.

Miss Betsy