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spam Is Illegal


turetzsr
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I suggested that perhaps since the sending of "spam" is illegal that those who allow spammers might be held partially responsible in our legal system.

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...To what legal jurisdiction are you referring? Some spam victims might be interested in moving to where you live!
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Probably the US, and I'm guessing that "CAN-spam" is what is being referred to.
...Thus my question, so I can explain to bcstones (and thus let others perusing here know) how (s)he is mistaken. :) <g>
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...Thus my question, so I can explain to bcstones (and thus let others perusing here know) how (s)he is mistaken. :) <g>
Well, not illegal in Texas, nor under Federal law, unless it breaches the 'telemarketing guidelines' or whatever (IANAL) - but doesn't most of it breach those? It is illegal in Oz where it is defined as UCE but "carriers" (ISPs) have specific immunity - though that (immunity) may be a fragile thing, being tested currently under a vaguely similar situation with regard to copyright.
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If you define "spam" simply as "unsolicited bulk mail," then CANSPAM does not make spam illegal in the US. You can still send unsolicited bulk e-mail and be CANSPAM compliant provided you (1) do not forge headers, (2) provide full & accurate contact info for the originator of the mail, and (3) provide at least the appearance of a working opt-out mechanism. There are other qualifications (such as not using harvested address lists), but these seem difficult to define or to prove.

In other words, CANSPAM does not prohibit opt-out bulk mailing. It is commonly supposed that the perceived toothlessness of the law is due to it having been heavily influenced by the direct marketing industry.

That said, most of the spam I see still fails at #2 and #3 at least (often #1 as well).

OK, so these guys are breaking U.S. Federal Law, we should send in the FBI, right? Well, as far as I am aware, many of these mailings originate outside the U.S., and many of the rackets are also situated outside the U.S., so a great deal of international cooperation (i.e., diplomacy) would be required for us (in the U.S.) to take action. This does, of course, sometimes happen.

As I've noted here before, I suspect that prosecutions based only on sending millions of unwanted e-mails are non-starters. Prosecutors are better off if they can tie the spamming in with related activities that are more clearly criminal in nature.

-- rick

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Nice precis Rick :) Fascinating area.

If you define "spam" simply as "unsolicited bulk mail," ...
To expand a little - the 'bulk' part of the definition is a problem in itself - an individual 'spam' is almost certainly part of a bulk distribution (at whatever the 'critical mass' might be) but that is not necessarily apparent from the individual spam (seldom is, even when 'distributions' are visible who's to say which are solicited and which are not?) - and, given the primary need to establish parties to be indicted, it is usually even less apparent who is paying for it to be sent, *if* that is the basis of culpability (which can be arguable). The complexity of investigation and the quality of evidence are major considerations.

If the alleged offender is, indeed, offshore (though SpamHaus makes it appear down through the years that the lion's share are actually resident in the good ol' USA, if not actual citizens thereof) then the notorious difficulty of 'co-operation' across jurisdictions arises. Can the defendant be tried 'in absentia'? (in effect, does he have assets available within/to the prosecuting jurisdiction? though I may be a trifle cynical in that call), if not then the whole cost and complexity of extradition (if there are treaties), predicated by the likelihood of custodial sentencing, which needs to assessed in advance, and (one would trust) the need for the 'crime' (including offenses outside of the Criminal Code) to be crimes in both jurisdictions (more arguments). Then additional factors such as human rights/'natural justice' and the competence of the prosecuting jurisdiction which may or may not be abrogated by treaty but will be examined at the insistence of competent legal representation and may provide defense anyway.

There are easier areas for enforcement, that's for sure.

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