FTC seeks powers to smash spam 4

[xutopia]

Sleipnir,

I'm not going to argue with you regarding your consitution. What I will do is present you with the facts.

http://attorneygeneral.utah.gov/pornography/obscenpornlaws.htm#1

Free speech protection is for political purpose, so that injustice can be in open light. Free speech is there so that, as a democracy, everyone can voice their ideas and opinions. It is not meant to protect bandwith thiefs, pronography kings or pill gurus.

Actually there are laws that exist for cable television in the US that prohibit people from sending obscene material by cable TV. By the same principles as were used to write such laws you could apply a law making all obscene Internet messages as illegal.

http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=18&sec=1468

There are existing laws in the US regarding spam. However they are weak in many states and there isn't any work between states to enforce things properly.

Florida is an almost free for all.
Kentucky : do as you wish so long as the line "THIS IS AN ADVERTISMENT" is prominently displayed within the message. You are allowed to falsify routing information
Louisianna : if you decide to falsify routing information you can only send the message to no more than 1000 people. If you don't falsify send to as many as you want.
Maryland : send as you wish so long as it is correct routing information

Source :

http://www.spamlaws.com/state/summary.html

The list goes on. Some states actually have really nice laws that make sense. Some just give total freedom to people to send whatever they want. Other states, it almost seems, make sure there are nice loopholes spammers can take advantage of.

To date, spammers are sure to follow the rules so they aren't out of business by some judges decree. If spamming became illegal they would have to stop.

Gary

http://www.xutopia.com

Haran
********************************

 

[sleipnir214]

petermeachem:
At no time have I applauded the fact that spam can be considered protected speech under the Constitution. And it would be incorrect to think for a moment that I enjoy defending the Bill of Rights on the basis of spam.

All I have said is that right now, the U.S. courts are saying that advertising is commercial free speech. And that this would be an impediment to passing laws limiting spam.

The current interpretation of the Bill of Rights isn't perfect, but it has fewer flaws than previous ones. For example, the interpretation in use until 1966 allowed racial segregation. What you seem to see as a symptom of something you don't like I see as a major improvement. I would rather have spam than to see darker-skinned Americans have to ride in the back of the bus. Or worse.

Because of the mistakes of the past, modern U.S. courts are loathe to uphold law or change constitutional thinking to permit infringements of protected speech.


xutopia:
Why do you say you're not going to argue the Constitution -- and then go on and do so?

The Bill of Rights is there to protect everybody including bandwidth thieves, pornography kings, and pill gurus. No one gets to decide on what is protected speech based on annoyance level. If a particular spam contains fraudulent claims, then it's not protected speech, it's fraud. And the constitution makes no limit on how much you're allowed to say before your constitutional protection ends.

And what, exactly, is the definition of pornography? The outer limits, like child pornography, most people can agree on. When can pornography (not protected) become, by general acceptance, a nude study (protected)? Even the Supreme Court hasn't been able to do more than develop the legal-pornographic equivalent of a Turing Test.

Also, state laws cannot be completely compared to national law of EU member states. For one, their laws must still conform to the Constitution. For another, there are a great many powers alotted to nations (raising armies, creating currency) that the states of the United States do not have.



petermeachem:
It sounds like the U.S. Senate is debating the very solution to the problem you're having with spam:

Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2001, or the CAN SPAM Act of 2001 - Amends Federal criminal law to subject to a fine or imprisonment the transmission of unsolicited commercial electronic mail message containing fraudulent routing information accompanied by header information that is materially or intentionally false or misleading.
Mandates inclusion of identifier, opt-out, and physical address in unsolicited commercial electronic mail.
Confers enforcement powers for violations of this Act upon: (1) upon the Federal Trade Commission; (2) designated Federal agencies; and (3) the States.
Permits treble damages in a civil action brought by a provider of Internet access service adversely affected by a violation of this Act.


Want the best answers? Ask the best questions:

http://www.catb.org/~esr/faqs/smart-questions.html

TANSTAAFL!

 

[PCLine]

xutopia:
Why do you say you're not going to argue the Constitution -- and then go on and do so?

I was wondering that...Perhaps it is a language barrier thing, lol.

All the best.

 

[sleipnir214]

petermeachem:

Oops. I'm getting conflicting reports on the status of the CAN SPAM bill. Considering both my senators are sponsors of the bill, I'm going to have to find out what's going on.


Want the best answers? Ask the best questions:

http://www.catb.org/~esr/faqs/smart-questions.html

TANSTAAFL!

 

[CajunCenturion]

Sorry for not responding sooner

xutopia – No, I have not forgotten about the price fixing. But no matter how you rationalize it, no matter what you use to justify your behavior -- ”The RIAA made me do it”, two wrongs do not make it right. You can sugar coat it to your hearts content, but in the final analysis, downloading copyrighted material without permission is illegal. Period. But that’s not what this thread is about.

EricDraven – Your notion that if a charge is placed on sending email, then people will start emailing from work will no doubt have a backlash in business’ monitoring of email to insure that it is used for business purposes only.

All – There seems to be a lack of understanding of what just free speech is all about. Specifically, pornography is not protected, but in general, Free speech does not mean “free to that which we do not find offensive”. It means that the right applies to everyone.
Charles Bradlaugh: ” "Without free speech no search for truth is possible... no discovery of truth is useful... Better a thousandfold abuse of free speech than denial of free speech. The abuse dies in a day, but the denial slays the life of the people, and entombs the hope of the race."
George Orwell: "If liberty means anything at all, it means the right to tell people what they do not want to hear."
William Douglas: ”Free speech is not to be regulated like diseased cattle and impure butter. The audience that hissed yesterday may applaud today, even for the same performance.”
From Friends of Voltaire: "Though I disagree with everything you say, I will defend to the death your right to say it."
Jutice Hugo Black: "Freedom of speech means that you shall not do something to people either for the views they have, or the views they express, or the words they speak or write."
Although it’s only conjecture on my part, I believe that everyone of these great thinkers would find many abuses of free speech to be immoral, unethical, appalling, disgusting, <insert other adjectives> and so forth, but from the sentiments of these expressions, I don’t believe that any of them would sacrifice free speech because of them. The true test of one’s character and convictions is not how you defend the basic rights when they are beneficial, but rather, how you react when someone else exercises that right in a manner diametrically opposed to your own sensibilities. These great men understood the breath and scope of the right to free speech. Based on some of the comments contained in this thread, not everyone has here feels the same.

xutopia – You comments about how the French have successfully dealt with spam are interesting. Perhaps you could explain the details of the French law (better yet, provide a link to it), and even more importantly, how to they identify the culprits and do you have any statistics from a reliable source on the overall effectiveness of the law, and prosecution rates. To say it works because of your mailbox doesn’t prove anything, because, I have a yahoo email address that I use almost every day (have had it for about 8 months), and it has yet to received any spam either. For me to say that there is no spam problem in the USA because my yahoo email address has yet to receive spam would be completely ludicrous. If the French are on to something, then let’s learn from it.


Good Luck
--------------
As a circle of light increases so does the circumference of darkness around it. - Albert Einstein

 

[dkediger]

Basic legislation simpy can't contain the problem when the fundamental protocols of the &quot;Internet&quot; allow forged routes and hijacking addresses...

http://www.securityfocus.com/news/5654

But like the mob moving in on a neighborhood poker game, spammers have turned a once-harmless misdemeanor into an organized and well-funded scheme. Internet defenders shudder at the thought of large portions of the net's real-estate under the control of anonymous rogue entities. &quot;There's no accountability. You don't know who really owns this particular address space. You have no way of finding out,&quot; says Schlichting.&quot; Some even worry that malefactors will go a step further, and begin hijacking address space that's already in active use. &quot;This whole episode has identified huge weaknesses in the Internet's own infrastructure,&quot; says Cox. &quot;What we've seen happen is trivial compared to what we've seen possible.&quot;


The way SMTP and IP routing works, if you want to hide, you can hide. Instituting the death penalty would still be ineffective the perp can't be found.

I think the legislative attempts mentioned are to be applauded as a beginning position, but I'm afraid they will lead to other issues as in the article I've linked.

Its going to take a fundamental change in the protocols/RFCs of the internet to really address the problem.

 

[xutopia]

Cajun,

&quot;If the French are on to something, then let’s learn from it.&quot;

I'm having trouble finding stuff in English regarding French laws against spam but here is what I can resume for you and what links I could find for you in English.

First a little history of computers and media in France :
The French had the first equivalent to commerical internet about 20 years ago (in 1982) in the form of terminals called &quot;Minitel&quot; that would use phone lines to connect to one another. People could chat, play games, order train tickets and buy cars on the Minitel system way before Internet had moved into the commercial market. Today Minitel is being replaced with Internet but France recognized the need to create laws to protect people and businesses in what they saw as the birth of a new digital era.

When Minitel was still a prototype in January 1978 the French legislature passed a bill called &quot; loi n° 78-17 du 6 janvier 1978 relative à l'informatique, aux fichiers et aux libertés&quot; or &quot;6th of January law relative to computers, records and liberties&quot;. The law set out to protect people against abuse and incorporates many things that were only seen later in most Canadian provinces.
The 6th of January law allowed for the creation of the CNIL or National Computer and Liberties Commission which reevalutes regularly the shape of the digital age to better protect citizens and goverment from abuse. The mandates of the CNIL are to study computer/media related practices, educate legislature and people regarding their rights amongst other things.

The CNIL helped create a color coded phone directory system so that people would not be bothered if they wished not to be.

White : anyone can see your phone number in the public directory. Businesses are allowed to call you for those annoying supper time surveys and to ask if your rugs are clean.
Red : no one can see your phone number except the phone compagny. The only people that call you are the people you gave your number to. Businesses are not allowed to generate random numbers so this means they can't call you unless you gave your phone number to them. Usually businesses ask what time they should call you if need be when they do require your number.
Orange : Your phone number is listed in the phone book so individuals can find your number and call you. Businesses cannot call you unless you opt-in with them and can be sued if they try.

Laws were passed so that hefty fines were given to companies that infriged the right to being left alone. Because of this it made sense for the judicial/penal system to pursue compagnies that infringe these laws.

When I was in France I was on the Orange list and never got a call I didn't wish for, had I been bothered there was a number I could call and the last number that called me would be traced and authorities would check it out. I could also sue the compagny directly as some individuals did against a phone compangny that mistakingly used the wrong list. They settled for free unlimited cellular phone service for 20 years. Kinda puts the customer back on its throne doesn't it?

As you can see the French were used to being left alone with the phones so SPAM probably bothered them a lot more than us North American people (who learnt to just deal with the BS). The CNIL also did research to quantify or at least qualify the cost associated with SPAM so it was easy to make it illegal with that predicate.

Eventually laws the CNIL helped pass (

http://www.euro.cauce.org/en/countries/c_fr.html)

allowed :

-Legitimacy of the processing: no electronic mailing without consent
-Prior information: no collection without the persons' knowledge Thanks to the CNIL and laws they helped create your phone number in France can be listed on one of three different lists. The French love color codes so here they are : Thanks to the CNIL and laws they helped create your phone number in France can be listed on one of three different lists. The French love color codes so here they are :
-Right to object: possibility to object to the collection of one's e-mail address for direct marketing purposes


Any company or individual that breaks the law can have between 3 to 5 years of jail and/or ~50 000/400 000$USD fine. Today it is well known that you should not spam and people do not do it.

Because the laws are severe and the fines help pay for the investigation/judicial costs the goverment is more inclined to pursue. Though it would be technically possible for someone to spam using routing masquerading a little investigation can be done with a court order and cui bono logic. If spam is sent which promotes toothpaste you can be pretty sure that it isn't a compagny trying to sell used tires.

It is relatively easy to find the source of the spam if you put your mind to it. With court orders cops are allowed to invesigate where and whom bought what. Large quantities of viagra promoted in a spammed manner can probably with a little ingenuity be traced back, if not with Internet tools at least with some form of logic that police investigation already has experience with. If the fines are hefty enough then there are no problems paying for the cops and the judicial/penal system. This is something France understood and we could probably apply.

Oh yeah on another note France is part of the EU. The country where the services were provided is where the laws prevail. So if it is illegal to send spam in France and you are in England (where it is legal) you cannot spam French emails without facing charges in France.

The two countries work together to extradite criminals. All North American countries already work things out like that as well as many NATO countries. So murdering someone in another country is *usually* dealt with by international laws. If SPAM is illegal in one country it falls under the umbrella of international laws and people can in most cases be prosecuted (I know the system is not perfect but in a majority of cases things work out to be alright).

I hope this gives a good explanation of the French anti-spam laws and how it works. French people are usually more vocal when a problem arises than us in NA. Maybe there are a few things we can learn from our cousins across the antlantic.

dkediger,

I disagree that perpetrators cannot be charged. Most SPAMS sell something otherwise how would they make money? SPAMS usually link to a web site or a mail order form. Otherwise how would they make money?

Cui bono investigation allows police to catch almost any SPAM culprit in France and the risk of getting caught far outweighs the benefit of spammers. Thus legislation can be effective against spammers.

Saying that we will move them into organized mafia terrorist is ludicrous. They have to sell something to make money and to do that they have to show us how to give them money.

Gary

http://www.xutopia.com

Haran
********************************

 

[dkediger]

xutopia

I could anonymously SPAM someone in France within about 15 minutes if I desired to do so. All I have to do is find an open relay, forge a message, queue it up and wa la, instant anonymous SPAM to France for &quot;herbal body part enlargement.&quot;

As far as trying to sell something, yes, the recipient would have to make contact somewhere to complete the trade - but it doesn't have to be me. This can easily be done by contract with off-shore service providers to take the orders, usually located in &quot;business-friendly&quot; places like certain Caribbean nations. Those orders can be then passed on to somewhere else for fulfillment, or not. I have no exposure other than the contract with my order takers. If French authorities come to visit the order takers, they know nothing, tell nothing, and at present can't be compelled to do so. All very nice and tidy, and actually pretty simple.

The internet was developed in a closed environment where everyone was trusted, therefore explicit authentication procedures in the protocols were simply not required. Now that it is out in the real world, that model is at odds with the way things work.

My point with the article was not so much the organized crime implication, but that hijacked IPs would only add another layer to the shell game.

 

[xutopia]

All,

Sorry about the formatting problem. Had a little copy and paste problem.

dkediger,

Since we are talking about France I'll translate a well known proverb &quot;Avec des si on pourrait mettre Paris en bouteille.&quot; &quot;With ifs we could put Paris in a bottle.&quot;

Nothing stops you from spamming French email accounts except laws. The good thing too is that the further away you spam something the larger the trail is for judicial system to retrace you. The other good thing too is that because the laws stop 99% of spam from happening concentrating on exceptional cases is easier. Also one spam email amongst 100 legitimate emails is faster to delete than 100 spams amongst 100 spam mails.

So far nobody made sound business sense by organizing overseas France spamming. The ROI simply is far from being what it needs to be to profit from such ventures.

Though it seems difficult for you to admit (for some reason that evades me) SPAM laws in France are effective. It is a fact you cannot contest. The laws there work because the people do not receive spam unless they opt-in.

I do not see how the US would not benefit from such laws. Are there things you could share that would show that similar laws could not spare the US citizens from being spammed daily?

I still believe that when there is a will there is a way. Spam can be fought without hindernig people's privacy. If spam was illegal to start with people would stop doing it and if they don't normal court orders would allow investigations to proceed (including ISP records, traffic logs, etc...).

I'm really starting to wonder if every problem is not an excuse to take over your personal information. It seems to every problem your goverment faces, be it terorrism, copyright infringement or spam it attempts to fix the problem by getting more information on you (TIA, DRM, FCC ideas). Are these people in charge incapable of imagining a way to protect your right to privacy or do they have other hidden motives? It's starting to look more and more like Leninism with an iron arm imposing laws against the people's will and freedom.

Gary

http://www.xutopia.com

Haran
********************************

 

[dkediger]

I'm not meaning to argue just for the sake of arguing, but I think there exist differences other than just SPAM laws that may be the difference. Laws of business incorporation, banking laws, and private versus gov't ownership of telcos - although I'm not sure if thats the case with France.

As for an example of what doesn't work, the link you provided to the Spamlaws site indicates that for my state, Kansas: it is illegal to falsify routing, bounce from a relay without permission, mislead or falsify the subject, and identify porn. This apparently applies to SPAM originating from or received in the state.

None of the SPAM I receive in the webmaster, or other people's mailboxes in my organization, passes muster on any of the above regulations. I'm not sure who I would report it to, probably the state Attorney General or Trade Commission, but what will they, or can they, do to actually get the perp. Examining the header of nearly every SPAM will reveal obviously forged routing/source info.

At that point the trail is dead unless you can manage to get every ISP back along the route to dig through logs and match messages IDs to get to the source ISP. Then you need to get that ISP to divulge the person behind the offending account, and that simply ain't gonna ever fly over here.

 

[dkediger]

xutopia

By the way, thanks for the Spamlaws link...star to you!

 

[CajunCenturion]

It seems that the French law does begin the
invasion of privacy. Quoting from the following link:

http://newsobserver.com/24hour/technology/story/782597p-5609931c.html

&quot;The deputies also called for Internet
site hosts to be responsible for a &quot;minimum
of surveillance&quot; of their pages, to prevent
the diffusion of messages or images of
racism, paedophilia and crimes against
humanity.&quot;

Granted, it's defined as a &quot;minimum of
surveillance&quot;, but it seems that even the
French realize that some invasion of privacy
is necessary to achieve the desired result.

Good Luck
--------------
As a circle of light increases so does the circumference of darkness around it. - Albert Einstein

 

[xutopia]

thread717-576102

because of my copy and paste mistake I believe it would be best to go to a follow up thread.

Gary

http://www.xutopia.com

Haran
********************************