Subject: Re: [Asrg] Thoughts so far

From: "Doug Phillips" <[email-masked]>
Date: Tue, 18 Mar 2003 10:16:46 -0500

I agree with Kee.  The prospective recovery from suits against spammers is 
not high enough to make suits worthwhile--not only because the penalties are 
too low, but also because many individual spammers are judgment proof.  In 
my view, this is why it would be helpful to have laws that could be enforced 
against vendors of software that circumvents anti-spam technology.

----Original Message Follows----
From: Kee Hinckley <[email-masked]>
To: Chuq Von Rospach <[email-masked]>
CC: "John Rumpelein" <[email-masked]>, <[email-masked]>
Subject: Re: [Asrg] Thoughts so far
Date: Tue, 18 Mar 2003 08:52:04 -0500

At 10:50 PM -0800 3/17/03, Chuq Von Rospach wrote:
>On Monday, March 17, 2003, at 08:12  PM, John Rumpelein wrote:
>
>>I live in Washington State, where we have already passed the legislation 
>>you
>>propose.  I can tell you, unfortunately, that I don't receive any less 
>>spam
>>than you do.  We can theoretically pursue lawsuits against spammers in 
>>small
>>claims court to the tune of $500 per offense, but I have not heard of one
>>single spammer (not one) who has actually been forced to pay under this 
>>law.
>
>it's a problem of jurisdiction. Washington is simply too small.

Actually one of the speakers at the MIT Spam Conference described someone 
who actually did take half a dozen spammers to court on the basis of one of 
the state laws (either Washington's or one like it). The results sounded 
pretty similar to the big suits.  If you could get them to court, you could 
find them guilty.  If you found them guilty, they might have the money to 
pay.  And when you were done you found that the return on your time was not 
worth the effort.

The problem with spamming is not that there is no legal recourse. There is.  
The courts have held that spamming is equivalent to trespassing--it's an 
unauthorized use of your equipment.  (Can anyone site a case in which the 
spammer won?)  The legal problem is that the penalties are not great enough 
to make suits worthwhile.
--
Kee Hinckley
http://www.puremessaging.com/        Junk-Free Email Filtering
http://commons.somewhere.com/buzz/   Writings on Technology and Society

I'm not sure which upsets me more: that people are so unwilling to accept
responsibility for their own actions, or that they are so eager to regulate
everyone else's.
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---

From: "Chris Lewis" <[email-masked]>
Date: Tue, 18 Mar 2003 11:49:16 -0500

Doug Phillips wrote:
> I agree with Kee.  The prospective recovery from suits against spammers 
> is not high enough to make suits worthwhile--not only because the 
> penalties are too low, but also because many individual spammers are 
> judgment proof.

Remember to distinguish between civil and criminal proceedings.  Few 
spammers are "judgement proof" against incarceration.

In some cases, rather than inventing new laws or other "entirely new" 
procedures, just moving the bar a bit can be helpful.

Ie: as state-specific anti-spam legislation isn't all that helpful, a 
national one helps to shift the balance and make critical mass in 
dealing with specific spammers easier to achieve.

This is not a fight with a "single solution", but needs moving forward 
on many different fronts - some technical, some socio-legal.

---

From: [email-masked]
Date: Tue, 18 Mar 2003 07:52:57 -0800 (PST)

How about criminal charges for spammers (after somebody won civil 
suite) with pentaly being that judge orders that spammer may not use 
computer or have anything to do with advertising business for set period 
of time?

-- 
William Leibzon
Elan Communications Inc. 
Office & Support: 408-519-6243
Sales: 877-ELAN-NET or 650-333-7658

---

From: Michael Ellis <[email-masked]>
Date: Tue, 18 Mar 2003 13:38:57 -0500

> computer or have anything to do with advertising business for set period

That wouldn't work. Civil charges and criminal charges have to be kept separate in
most legal systems. Winning a civil case is not the same as winning a criminal
case. You would have to separate the two and make spamming a criminal offense
before a judge could set those conditions. (which wouldnt fly anyway most of the
time).

--
Michael Ellis
Privacy Manager
Date.com
  Phone   (416) 306-0022 ext 620
  Fax     (416) 306-0023

Date.com - "The New Way To Date"

---

From: "Chris Lewis" <[email-masked]>
Date: Tue, 18 Mar 2003 14:34:01 -0500

> before a judge could set those conditions. (which wouldnt fly anyway most of the

On the contrary, if someone loses a civil suit that ends up with an 
injunction against doing the same thing in future, doing it again is 
contempt of court, and is a criminal offense subject to jail time.

Why Sam Khuri didn't get hit with a contempt citation and jailed for 
spamming again is a complete mystery to me.  Well, no it isn't, the 
requisite DA didn't think it worth the effort.

---

From: Michael Ellis <[email-masked]>
Date: Tue, 18 Mar 2003 15:17:09 -0500

> requisite DA didn't think it worth the effort.

In a way thats true but the contempt of court is still a separate charge which must be
pursued and is still largely civil in nature as the plaintiff must start the
proceedings.

---

From: "Chris Lewis" <[email-masked]>
Date: Tue, 18 Mar 2003 15:46:00 -0500

> pursued and is still largely civil in nature as the plaintiff must start the

Depending on circumstances, the judge is the plaintiff.

---

From: Steve Schear <[email-masked]>
Date: Tue, 18 Mar 2003 13:13:56 -0800

>computer or have anything to do with advertising business for set period

I really think this talk of "punishing" spamers has gotten out of 
hand.  I've sent an unsolicited email or two in my time and don't feel the 
least bit guilty about it.  Its simply business.

If you think about the way printing costs and postal rates influence 
advertising decisions you'll see this is really an economic problem not a 
moral or social issue.  In the U.S. I think it currently costs about $0.25 
to send a bulk 1st Class mail, less for other types.  Is the person who 
send you a pitch in your mail box a criminal because they "clog" your box 
with an unwanted pitch?  What if the cost of postal mail and printing were 
to drop to 1/10 or 1/100 of their current costs?  Would those business 
which expanded their advertising now become criminals because market forces 
had increased their ability to economically reach more people?  What if it 
became essentially free?  Would there be cries for opt-in postal 
delivery?  Probably.  If opt-in postal lists were more frequently used it 
would save advertisers lots of money.

So, raising the cost of delivering an email to even $0.01 would cause all 
but the most profitable pitches to evaporate from our in-boxes.and offering 
advertisers an opt-in list would be a great benefit to both them and us.

steve