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Anonymous Speech in Email Upheld in Spammer Case - Updated
Saturday, September 13 2008 @ 09:42 AM EDT

I wanted to highlight for you in a ruling in a spammer case, Jeremy Jaynes v. Commonwealth of Virginia just decided by the Virginia Supreme Court, which struck down Virginia's anti-spam law as unconstitutional. Since the headlines about this story, such as this one in the Washington Post, Virginia AntiSpam Law Overturned, Spammer Walks, naturally point out that a notorious spammer has avoided jail time as a result, I wanted to make sure you understood the why of it.

You can read the entire decision here as text [here's the PDF]. I'll highlight the part that matters most. It's a matter of free speech, not because the law should allow spamming, but because the law in Virginia, unlike federal and other state laws, was found to be overbroad, since it blocked religious and political speech too. Virginia's legislature can fix that problem, but a judge can't substantively rewrite laws to make them constitutional. At issue in the case was false headers in emails, and the court significantly decided that the way email works, providing IP addresses and domain name information makes anonymous email impossible, so banning false routing information without narrowing the scope would end up banning constitutionally protected speech as well:

For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.


Here's a longer excerpt, so you can understand why, despite the Washington Post's disturbing headline, the court of appeals struck down the Virginia statute as unconstitutional, and I've provided links to the cases cited, for your convenience:
As shown by the record, because e-mail transmission protocol requires entry of an IP address and domain name for the sender, the only way such a speaker can publish an anonymous e-mail is to enter a false IP address or domain name. Therefore, like the registration record on file in the mayor’s office identifying persons who chose to canvass private neighborhoods in Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (2002), registered IP addresses and domain names discoverable through searchable data bases and registration documents "necessarily result[] in a surrender of [the speaker’s] anonymity." 536 U.S. at 166. 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." McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995). By prohibiting false routing information in the dissemination of e-mails, Code § 18.2-152.3:1 infringes on that protected right. The Supreme Court has characterized regulations prohibiting such anonymous speech as "a direct regulation of the content of speech." Id. at 345.

State statutes that burden "core political speech," as this statute does, are presumptively invalid and subject to a strict scrutiny test. Under that test a statute will be deemed constitutional only if it is narrowly drawn to further a compelling state interest....

Many other states have regulated unsolicited bulk e-mail but, unlike Virginia, have restricted such regulation to commercial e-mails....

The United States Supreme Court recently reviewed the First Amendment overbreadth doctrine in United States v. Williams, 553 U.S. ___, 128 S.Ct. 1830 (2008). The Court noted [i]n order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep. . . . Applying that inquiry under Williams in this case is relatively straightforward as Code § 18.2-152.3:1 would prohibit all bulk e-mail containing anonymous political, religious, or other expressive speech. For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.

I've explained to you many times that the US legal system was founded on the idea that certain protections are to be guaranteed, even if it means a guilty person here and there gets away with something. The court knows that the legislature can fix the law by passing one now that is more narrowly tailored, and while this spammer is walking, the new law will catch him in the future, should he be so foolish as to repeat the offense.

The idea of the US Constitution is to make sure no one has the authority to pass laws that violate certain basic rights the founding fathers viewed as critical. If they pass them anyway, the courts can strike them down as unconstitutional. Freedom of speech is considered one of those vital rights, subject to certain limitations that you can read about in the ruling, as well as in the cases cited, if you wish to delve into this subject more deeply. For example, in the Williams decision, the rule stated is, "A statute is facially invalid if it prohibits a substantial amount of protected speech." The court isn't saying spamming is OK. It's saying that the law has to be more narrowly written to make sure it targets only spammers or other speech that isn't protected by the First Amendment. Think of it as saying that if your nets catch both sharks and dolphins, you have to fix it to catch only sharks.

I've never seen a case before where a court understood tech enough to realize that email headers could be an anonymous speech issue, and I found it fascinating and refreshing, despite how much I hate spam, and I thought you might find it of interest too. Also, sometimes people express the idea that anonymous speech is somehow smarmy. Not so, says the US Constitution. As you can see by this court's ruling, it's a fundamental American right. Here's the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Update: I see by some of your comments that the there is some confusion about antispam laws. The ruling isn't saying that you can't write laws against spam; nor is it saying that spam is protected by the First Amendment. In fact, the court took the time to list the federal law, CAN-SPAM, and other state antispam laws that are constitutional:

There is no dispute that Code § 18.2-152.3:1 was enacted to control the transmission of unsolicited commercial bulk e-mail, generally referred to as SPAM. In enacting the federal CAN-SPAM Act, Congress stated that commercial bulk e-mail threatened the efficiency and convenience of e-mail. 15 U.S.C. § 7701(a)(2). Many other states have regulated unsolicited bulk e-mail but, unlike Virginia, have restricted such regulation to commercial e-mails. See e.g., Ariz. Rev. Stat. § 44-1372.01; Ark. Code Ann. § 4-88-603; Cal. Bus. & Prof. Code § 17538.45; Fla. Stat. § 668.603; Idaho Code § 48-603E; Ill. Comp. Stat., tit. 815 § 511/10; Ind. Code § 24-5-22-7; Kan. Stat. Ann. § 50-6, Md. Code Ann., Commercial Law § 14-3002. There is nothing in the record or arguments of the parties, however, suggesting that unsolicited non-commercial bulk e-mails were the target of this legislation, caused increased costs to the Internet service providers, or were otherwise a focus of the problem sought to be addressed by the General Assembly through its enactment of Code § 18.2-152.3:1.

Jaynes does not contest the Commonwealth’s interest in controlling unsolicited commercial bulk e-mail as well as fraudulent or otherwise illegal e-mail. Nevertheless, Code § 18.2-152.3:1 is not limited to instances of commercial or fraudulent transmission of e-mail, nor is it restricted to transmission of illegal or otherwise unprotected speech such as pornography or defamation speech. Therefore, viewed under the strict scrutiny standard, Code § 18.2-152.3:1 is not narrowly tailored to protect the compelling interests advanced by the Commonwealth.

All Virginia legislators need to do is fix the language to match some other states, and presumably then the antispam law would pass the strict scrutiny standard.

If you'd like to compare the laws, you can easily do so. Just plug in the statutes referenced in the order, and compare the language. For example, if you plug in:

Md. Code Ann., Commercial Law § 14-3002
you get the link to the Maryland statute. Its antispam law reads like this:
(a) This section does not apply to an interactive computer service provider or a telecommunication utility to the extent that the interactive computer service provider or the telecommunication utility merely handles, retransmits, or carries a transmission of commercial electronic mail.

(b) A person may not initiate the transmission, conspire with another person to initiate the transmission, or assist in the transmission of commercial electronic mail that:

(1) Is from a computer in the State or is sent to an electronic mail address that the sender knows or should have known is held by a resident of the State; and

(2) (i) Uses a third party's Internet domain name or electronic mail address without the permission of the third party;

(ii) Contains false or misleading information about the origin or the transmission path of the commercial electronic mail; or

(iii) Contains false or misleading information in the subject line that has the capacity, tendency, or effect of deceiving the recipient.

(c) A person is presumed to know that the intended recipient of commercial electronic mail is a resident of the State if the information is available on request from the registrant of the Internet domain name contained in the recipient's electronic mail address. (d) An interactive computer service provider:
(1) May block the receipt or transmission through its interactive computer service of commercial electronic mail that it reasonably believes is or will be sent in apparent violation of this section; and

(2) May not be held liable for an action under item (1) of this subsection that is voluntarily taken in good faith.

I put in the highlighting. Notice the Maryland law carefully limits the law's breadth to *commercial* unsolicited bulk email? Now let's look at Virginia's language in the statute that was just found to be unconstitutional, as quoted in the ruling:

A. Any person who:
1. Uses a computer or computer network with the intent to falsify or forge electronic mail transmission information or other routing information in any manner in connection with the transmission of unsolicited bulk electronic mail through or into the computer network of an electronic mail service provider or its subscribers . . . is guilty of a Class 1 misdemeanor.
B. A person is guilty of a Class 6 felony if he commits a violation of subsection A and:
1. The volume of UBE transmitted exceeded 10,000 attempted recipients in any 24-hour period, 100,000 attempted recipients in any 30-day time period, or one million attempted recipients in any one-year time period. . . .

Do you see the difference? *Any person* means you, if you send out an email to someone you don't know with false routing information. If you are a political person and you wish to comment on an issue that is controversial, you might send out email on the subject to people you don't know, hoping to influence them, and if you are afraid of repercussions from those who do not bind themselves by law, you might use false headers as one way to try to be anonymous.

Should that be a crime? This court said that since there is no other way to be anonymous in email (I know geeks might have a longer list), it can't be criminalized as the Virginia statute does, since anonymous speech in religious or political areas is protected by the First Amendment. You have to limit the law's reach to commercial speech.

See why the court pointed out that by not limiting the law to commercial speech, it would be illegal for the authors of the Federalist Papers -- if they lived now instead of back then -- to send it out anonymously by email, meaning with false headers? Not only that, but if they sent it out in sufficient quantity, it would be a felony no less.

Well, the court has read the US Constitution and the Bill of Rights. It understands that the First Amendment doesn't give states or the federal government the right or authority to write a law that has that kind of effect. So the court said that if Virginia wants an antispam law, they need to come up with one that is more carefully written.

Some of you will protest that you don't want the Federalist Papers either, because they're long and you have to pay for receiving it. You have self-help ways to block email you don't wish to receive. The founding fathers were concerned about limiting political speech, because they had seen in real life back in Europe what happens when governments get to decide what kind of speech is allowed and what isn't, so they came up with protections to keep the US a place where you are allowed to speak your mind about political and religious topics without being called a criminal. And if you wish to speak anonymously, as the authors of the Federalist Papers pragmatically decided would be wise, you can do so. That has always been the law in the US; all this ruling did is apply that principle to email.


  


Anonymous Speech in Email Upheld in Spammer Case - Updated | 494 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Anonymous Speech in Email Upheld in Spammer Case
Authored by: joef on Saturday, September 13 2008 @ 09:57 AM EDT
Perhaps, with enough cases like this, those who draft our laws will eventually learn how to avoid the temptation to be all-inclusive. I'm not holding my breath, though, for the passions of the day and the ideologies of the drafters sweep everything into the same net.

Much of Virginia's constitutional history has been dominated by the strong influence of Thomas Jefferson, and often exhibits a stronger commitment to individual freedom than does the US constitution, particularly in the areas of political and religious action. This decision is certainly consistent with that tradition.

[ Reply to This | # ]

Corrections
Authored by: bbaston on Saturday, September 13 2008 @ 10:17 AM EDT
Erers > errors in title please

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

  • Corrections - Authored by: Anonymous on Saturday, September 13 2008 @ 08:24 PM EDT
Off Topic thread
Authored by: bbaston on Saturday, September 13 2008 @ 10:18 AM EDT
Links always appreciated.

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

News Picks
Authored by: bbaston on Saturday, September 13 2008 @ 10:20 AM EDT
Please repaet the title from your chosen News Pick

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Using MY resources to make YOUR speech...
Authored by: Anonymous on Saturday, September 13 2008 @ 10:30 AM EDT

It's "free as in liberty" that's protected. While spam is "free to you, as in beer you make me pay for". Similarly, your freedom to swing you fist ends well short of my nose.

And for that matter, it's clear to me there is such a thing as being too-privileged. So-called "religious" or "political" speech that just motivates hate is not a thing I want to suffer, any more than the latest 419 scam. There's no substantial difference between a scam perpetrated to put cash in the pockets of a corrupt preacher, and one to put it in the hands of some clown in Nigeria (or wherever).

Pushing spammers to become part of the religious or political establishment, to take better advantage of those loopholes, will not be an improvement.

[ Reply to This | # ]

But what about CyberPromotions v. AOL?
Authored by: Anonymous on Saturday, September 13 2008 @ 11:00 AM EDT
Hey PJ, what about CyberPromotions v. AOL, in which the Supreme Court of the US
said (and I paraphrase) that there's no such thing as "Free Business
Speech" -- which this spammer was engaging in? It may be worth looking
at.

--STrRedWolf (forgot to log in)

[ Reply to This | # ]

This propagates an incorrect view of the Constitution
Authored by: tarran on Saturday, September 13 2008 @ 11:27 AM EDT
The idea of the US Constitution is to make sure no one has the authority to pass laws that violate certain basic rights the founding fathers viewed as critical.
This is actually quite incorrect; it is a view really invented in the later half of the 19th century, and then implemented fully in the 20th to justify government expansion. The U.S. Constitution described a government of very limited powers. Only powers granted to it explicitly were to be permitted to it. Madison and Hamilton only grudgingly accepted the Bill of Rights because they viewed it as superfluous - they forbade the Congress from doing what it was not permitted to do anyway. Of course, from almost the first moment it was implemented, the new Constitution was violated. George Washington even attacked Pennsylvania farmers to collect an illegal tax. His successor signed into law the Alien and Sedition Acts which were explicitly designed to prevent the opponents of the Federalists from publishing their views. The notion that the bill of rights somehow sets boundries that the government may not cross really came to the fore in the 1930's as a way to continue the fiction of limited government while permitting the government to, among other things, prevent a man from growing wheat on his own farm for his own consumption. Of course, this does not mean that the theory does not describe the U.S. government. After all, the government court monopoly can start pretending tomorrow that women are not permitted to own property, and they could get away with it. All they'd have to do is come up with some rationalization (such as they did when they claimed in the 1800's that black people weren't U.S. citizens) and publish it in the textbooks used by the government schools for two decades or so, and everyone would be parrotting the rationalization on blogs as if it were a reasonable legal theory.

[ Reply to This | # ]

So what about the American CAN-SPAM Act?
Authored by: Anonymous on Saturday, September 13 2008 @ 11:37 AM EDT
So what effect does this have on the American CAN-SPAM
Act?

"It bans false or misleading header information. Your
email's "From," "To," and routing information –
including
the originating domain name and email address – must be
accurate and identify the person who initiated the email."

From

http://www.ftc.gov/bcp/conline/pubs/buspubs/canspam.shtm

[ Reply to This | # ]

So far off the mark it actually hurts
Authored by: Anonymous on Saturday, September 13 2008 @ 12:05 PM EDT
"I've never seen a case before where a court understood tech enough to
realize that email headers could be an anonymous speech issue,"

You mean completely misunderstood. This is a textbook example of a little
knowledge being a dangerous thing. This court so completely misunderstood as to
be duped into seeing a Free Speech issue in the middle of a man's commission of
theft and deceit. There's no Free Speech issue here, hopefully SCOTUS will send
the spammer back to jail and correct the court that issued this sad and absurd
decision.

[ Reply to This | # ]

Technically incorrect
Authored by: Anonymous on Saturday, September 13 2008 @ 12:14 PM EDT
"...because e-mail transmission protocol requires entry of an IP
address and domain name for the sender, the only way such a speaker can
publish an anonymous e-mail is to enter a false IP address or domain
name."

That's just wrong; one could use any one of a number of email anonomizers. Or,
one could create a gmail or yahoo account using a pseudonym, and only access
it from an internet cafe or other open WAP. Or TOR.

More technically challenged juges. Sigh.

[ Reply to This | # ]

Anonymous Speech in Email Upheld in Spammer Case
Authored by: Anonymous on Saturday, September 13 2008 @ 12:43 PM EDT

1. I see nowhere in the First Amendment any reference to anonymous speech being
explicitly protected;

2. even if there were, it has been pointed out that there exist several much
more "honest" ways to effectively obscure the actual identity of email
senders.

This decision is not, much as it seems to wish to be, a defense of "free
speech". Instead, it is a poorly-thought-out application of libertarian
concepts which have no place in the context of email communications in the 21st
century.

[ Reply to This | # ]

Anonymous Speech in Email Upheld in Spammer Case
Authored by: lordshipmayhem on Saturday, September 13 2008 @ 01:05 PM EDT
Free, anonymous speech does not consist of forcing me to take my own paper and
pen and write down what the person has to say. I should be able to ignore him
without consequences. Instead his "free speech" is robbing me of my
paper, my pen and my time (and possibly my feeling of safety). Bear with me
here while I connect the dots.

The consequences of trying to ignore spammers is to either not go on the
Internet in the first place, or install anti-spam software (for the M$ types out
there, often forking out more $) and risk missing important messages from people
we DO want to hear from when their e-mail gets swept into the trash can with
real spam. Their speech may be "free as in speech", but is definitely
not "free as in beer". Like the example above, I'm using my resources
(my computer, electricity I'm paying for to run that computer, my ISP
connection) to be able to get messages I want - and they're hijacking that.
Someone else's free speech that I have to spend money on, and non-monetary
resources on, isn't free at all.

I completely disagree with the Court on this one, and hope that this issue gets
revisited on appeal.

[ Reply to This | # ]

PJ You Can't Be Serious "certain protections are to be guaranteed"
Authored by: Anonymous on Saturday, September 13 2008 @ 01:12 PM EDT
,I've explained to you many times that the US legal system was founded on the idea that certain protections are to be guaranteed,
, PJ you can't be serious. Just look at any history of voting in the USA; to see that the greatest protection that anyone needs, must have - is the right to vote. It still doesn't exist in the USA; although the battle has been going on in the courts for 300 years in the USA. Here's one brief history Linkey

"Does everything look like a nail!"

[ Reply to This | # ]

You are all missing the point
Authored by: Quila on Saturday, September 13 2008 @ 01:45 PM EDT
The CAN SPAM Act restricted only commercial speech, advertisements. It has long
been held that commercial speech can be restricted. The idea of anonymous speech
doesn't really apply to a legitimate commercial operation.

Even if this law is overbroad, it is applied constitutionally in this instance
of commercial speech.

[ Reply to This | # ]

No, PJ, this is NOT a Free Speech issue
Authored by: Anonymous on Saturday, September 13 2008 @ 02:53 PM EDT

This is not an issue of anonymous speech or free speech. If the law had blocked Jaynes from putting up a website anonymously, or blocked him from putting whatever he wanted on that website, then maybe it would have been an anonymous speech or free speech issue. But it didn't, so it ain't.

Lawyers (and PJ) please read:

We object to spam, not because of its content, but because it uses resources which I own (and have paid for), without my consent.

What part of taking my resources is protected by the US Constitution?

[ Reply to This | # ]

A question.....
Authored by: tiger99 on Saturday, September 13 2008 @ 03:42 PM EDT
How long does it usually take in the state of Virginia to change a broken law?

In other words, how long will it be before the activities of this particular spammer are made demonstrably illegal?

I do hope it is quick!

Of course, that is on the basis that SCOTUS do not find a way of getting around the judgment of the lower court, which is based on applying an obviously broken law. Others have aired the view, with which I readily concur, that sending spam is stealing someone else's resources, and if SCOTUS can find a way of making that stick, this guy may yet end up where he deserves to be.

[ Reply to This | # ]

Anonymous Speech in Email Upheld in Spammer Case
Authored by: JamesK on Saturday, September 13 2008 @ 05:24 PM EDT
" Also, sometimes people express the idea that anonymous speech is somehow
smarmy. Not so, says the US Constitution. As you can see by this court's ruling,
it's a fundamental American right. Here's the First Amendment:

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances."

Does that also give spammers the right to use other's computers, without
consent, to send out their spam? There are also laws about FAX junk mail,
because it costs the recipient money to receive it. Wouldn't something similar
apply here?


---
OOXML - The best "standard" that money can buy.

[ Reply to This | # ]

Anonymous Speech in Email Upheld in Spammer Case - Updated
Authored by: dcs on Saturday, September 13 2008 @ 05:44 PM EDT
Policital spam IS STILL SPAM.

Spamming is entering someone's private home, tying people inside to a chair, and
then forcing them to hear you.

Do you want to publish political statements? CREATE A WEB SITE! There. And it's
not my fault you can't anonymously create a web site, it's the government's.

My e-mail is for PERSONAL communication. The logical consequence of this ruling
is that the use of anti-spam software will be OUTLAWED if it doesn't protect
political speech. You just wait. This is a bad, bad decision.


---
Daniel C. Sobral

[ Reply to This | # ]

Anonymous Speech in Email Upheld in Spammer Case - Updated
Authored by: dcs on Saturday, September 13 2008 @ 05:50 PM EDT
<blockquote>You have self-help ways to block email you don't wish to
receive.</blockquote>

The only reliable way to help myself in denying e-mails I don't receive is by
relying on the identity of the sender. If I can't trust the identity of the
sender, I can only GUESS at what e-mails I can receive or not. And either I take
the chance of not receiving something I wanted, or I have to look at each e-mail
anyway to see if it's spam or not, thereby incurring in costs and spending my
time.

Which is the present state of anti-spam technology. And I'll call your attention
again that spammers have relied on the political speech theory to prosecute
anti-spam sites and software.

And what will happen when every spam starts with a paragraph of political
message? Or you don't think spammers are wily enough for that? Where will you
draw the line?

Sorry, but this ruling is stupid. E-mail is a two-way communication, not a
broadcast. I can't tune out e-mail, because it's the channel I use to speak to
my friends and do my business.


---
Daniel C. Sobral

[ Reply to This | # ]

Anonymous Speech in Email Upheld in Spammer Case
Authored by: Alan(UK) on Saturday, September 13 2008 @ 05:51 PM EDT
I am not a US citizen nor am I a resident of the US.

I find this case curious because, until I read the details, I assumed that
something quite different had transpired.

I understand that, in the US, people have a right to speak anonymously. I
assumed that this meant that if someone wanted to speak anonymously and obtained
an agreement with someone (say a newspaper reporter or a printer) to assist him
in this, then the authorities could not insist on that person divulging the name
of the person concerned. In this particular case, I was expecting that Jaynes
would have appealed on the grounds that his ISP should not have revealed his
identity - an appeal that would be bound to fail because the ISP would have
needed no coercion to reveal the spammer's identity.

Instead of this, the court is saying that the fault lies with the whole protocol
and domain name registration system that makes the identity of the sender known,
or at least easily discovered. As there happens to be a loophole in the system
that allows one to falsify this information, use of this loophole is protected
by the Constitution as there is no other way of sending e-mail anonymously.

If the court is right and the law is too broad, is not the decision of the
Virginia Supreme Court even broader? Is every law that requires that someone
correctly identifies himself when making a statement now overturned? I don't
know how you do it in Virginia but in England the following sounds very silly:

"Do you, Pope Gregory the 97th take this women, Queen Elizabeth III, as
your lawfully wedded wife?"

Passports, driving licences, cheques - where will it all end?

The problem is not that a person is fraudulently obtaining a passport or a wife,
but that they are merely exercising their right to speak anonymously when doing
so - and as the only way to speak anonymously in these circumstances is (as
Jaynes has done) not to sign yourself 'anonymous' but to lie about your
identity. As 'anonymous' is rejected by the 'protocol', the Constitutionally
protected way is to lie.

Am I mad, or does the problem lie elsewhere?

---
Microsoft is nailing up its own coffin from the inside.

[ Reply to This | # ]

Fake IPs and hostnames
Authored by: Anonymous on Saturday, September 13 2008 @ 06:24 PM EDT
The problem is that spammers aren't using made up names, they are impersonating
real domains, and using real IPs, which belong to individuals and businesses.

When the spammer sends out two million messages, a large percent will naturally
bounce, and those will go directly to the real owner of the "from"
address, likely causing massive problems with their site, possibly downtime and
huge bandwidth charges.

Then there are all the people who are upset at receiving spam which will mail
the owners of the real domain complaints, or maybe they will complain to their
ISP, or add the domain to a black list, preventing anything, including
legitimate messages, from being sent from it.

I don't see it as being the same as using a pen name at all, unless the name and
address of the pen name were of a real person, who wasn't the same as the one
who wrote the message.

[ Reply to This | # ]

I believe unsolicited bulk email is always wrong, regardless of content
Authored by: jbeale on Saturday, September 13 2008 @ 06:26 PM EDT
PJ wrote: "Some of you will protest that you don't want the Federalist
Papers either, because they're long and you have to pay for receiving it. You
have self-help ways to block email you don't wish to receive."

I have read PJs arguments and am not convinced. I am firmly of the opinion that
unsolicited bulk email with forged headers is never justified. I cannot
"simply" block the email I don't wish to receive- I have email filters
now, but that's an arms race which I seem to be loosing. Moreover, I don't
think I should be required to play that game.

If I am sitting at home in my house and someone (advertiser or politician or
charity) parks on the street in front with a loudspeaker and plays their
commercial or political or charitable message at high volume, is that protected
speech? Even if I might be able to build a soundproof shell around my house, at
my expense, which also inconveniences any invited guests? I believe I am
entitled to the peaceful enjoyment of my own property.

I cannot accept that fraudulent email headers are ever legitimate. Should I be
able to, for example, impersonate a police officer, so that I can get someone to
listen to me? Using the argument that they simply ignored me otherwise, when I
tried to harangue them on the street, thus infringing my right of free speech?


In general, I am not sure that email is a perfect match to the idea of
"speech" in the constitution. I am sure that fraudulent (as opposed
to simply anonymous) email should not be protected.

[ Reply to This | # ]

Is using of Mixmaster also prohibited?
Authored by: Anonymous on Saturday, September 13 2008 @ 06:48 PM EDT
I just wonder if using of the anonymizers like mixmaster is also providing a "false routing information in the dissemination of e-mails" and should be illegal?

(see description to know more about the Mixmaster)

[ Reply to This | # ]

People, please
Authored by: Anonymous on Saturday, September 13 2008 @ 08:38 PM EDT
I don't read this as PJ saying spam is, and should be, protected by free
speech. Merely that laws can have unintended consequences and this is just such
a case.
It's not about protecting spam; it's about protecting free speech.

[ Reply to This | # ]

Anonymous Speech vs forgery and deception
Authored by: hAckz0r on Saturday, September 13 2008 @ 11:19 PM EDT
The American right of free speech is not in question in my mind, but the right
to Anonymous Speech is in itself debated by many. In my mind you may very well
be able to speak your mind, perhaps even anonymously, but that does NOT give the
right to do so by utilizing forgery and deception in attempt to make me listen
to you. When you attempt to technically circumvent my ability to ignore your
speech you are going beyond the rights bestowed upon you by the nature of your
citizenship, and it becomes a criminal act. By using such methodologies you have
by the very nature of your actions given up any natural rights to free speech.
Please, feel free to create your own anonymous email account and then send me as
much 'free speech' as you like. Just don't expect me to pay the bill, and if
your do it using forgery I will do everything in my own power to revoke your
'privilege' of free speech. Forgery is a crime, and should be treated as the
crime that it is.



---
DRM - As a "solution", it solves the wrong problem; As a "technology" its only
'logically' infeasible.

[ Reply to This | # ]

All worship the Holy Pill
Authored by: Anonymous on Sunday, September 14 2008 @ 12:49 AM EDT

Let us pray to the Holy Pill.

Our Holy Pill which art available online. Mellowed be your congregation. Thy emails come. Thy will be done. In Earth as it is in Virginia. Give us this day our daily Pill. And make us thin, thinner than the girl next door who called me a fatty. Lead us not into the sweaty gym; but deliver us from doughnuts. For thine is the power to make us big, biggest in the kingdom, for the whole night and the morning after. Amen.

Send your donations to the Reverend Knott A. Spammer, Church of the Holy Pill. (Home of the Pill for President campain.)

[ Reply to This | # ]

PJ still does not get it
Authored by: Anonymous on Sunday, September 14 2008 @ 02:07 AM EDT

PJ wrote:

If you are a political person and you wish to comment on an issue that is controversial, you might send out email on the subject to people you don't know, hoping to influence them, and if you are afraid of repercussions from those who do not bind themselves by law, you might use false headers as one way to try to be anonymous.
Should that be a crime?

Yes it should, because it uses resources which belong to me, which I have not given permission to the spammer to use.

You have as much right to use my computer for your political purposes as you have to use my automobile for your political purposes. Anonymously spray-painting a political message on my car is not protected by the first amendment. Why is spam email any different?

The last thing we need is for some 'creative' people to read PJ's specious argument and fill my inbox with "Vote for McCain/Palin!" and "Vote for Obama/Biden!" emails. PJ seems to think that would be a perfectly defensible thing to do because it's not commercial. Well, I don't, and I don't think it's constitutionally-protected activity, but if it were, I'd say the top priority in American politics - ahead of Iraq, the economy, the price of gasoline, whatever - would be to amend the constitution to fix that problem.

You have a political message? Put it on a website. Post it anonymously to a forum (as I'm doing now).

[ Reply to This | # ]

So ... is this an open license for political spam?
Authored by: Anonymous on Sunday, September 14 2008 @ 04:07 AM EDT
Can anyone with a political motive now send as much spam as they like -
constitutionally protected without any possiblility of sanction. Billions of
spams. From every political crackpot group out there. Religious too. I presume
religious speech is similarly protected. Spams from the scientologists. From
every weird religious group out there.

Somehow IO think the court's decisoion here cannot be the final word on this
subject because the outcome is potentially absurd.

[ Reply to This | # ]

What is Anonymous Speech?
Authored by: Anonymous on Sunday, September 14 2008 @ 08:28 AM EDT
If I speak in the English sense everyone can tell who spoke. If I write a
letter to the editor I must provide my name and address. The only examples of
anonymous communication that I can think of are situations (like this blog)
where someone has chosen not to propagate my identifying information. I find it
hard to relate to this as a right.

[ Reply to This | # ]

Ping - Delaware G7
Authored by: snakebitehurts on Sunday, September 14 2008 @ 09:25 AM EDT
I will be unable to attend this weeks hearing. Is anyone else planning on
going? I have another business appointment 100 miles away I simply cannot
miss.

MikeD

[ Reply to This | # ]

Anonymous Speech in Email Upheld in Spammer Case - Updated
Authored by: Anonymous on Sunday, September 14 2008 @ 04:05 PM EDT

Count them. Count the ones that you get in the next week that are from people advocating politics or religion.

I haven't seen many religious spams yet, unless you could the religious platitudes in some of the "Nigerian Letters". Most politicians probably have enough self preservation to know not to annoy their prospective voters too badly. But they do happen: Back in May 2005, when the Sober.Q worm was blasting German right-wing propaganda all over the place for about a week, it made a very noticeable spike in my spam count. It took over a year before the spam reached such giddy heights again.

It's not known whether this was a campaign for the Nationaldemokratische Partei Deutschlands or against it since the mails were sent anonymously, but regardless I'd still call it politically motivated. It's probably just a matter of time before something like it happens again.

[ Reply to This | # ]

Anonymous Speech in Email Upheld in Spammer Case - Updated
Authored by: Henning Makholm on Sunday, September 14 2008 @ 06:05 PM EDT
The court erred twice. On page 3 it correctly states:
An expert witness testified that the e-mails sent by Jaynes were not consistent with solicited bulk e-mail, but rather constituted unsolicited bulk e-mail (sometimes referred to as “spam” e-mail)
However, on page 23 it makes this mistake:
There is no dispute that Code § 18.2-152.3:1 was enacted to control the transmission of unsolicited commercial bulk e-mail, generally referred to as SPAM.
Spam is all unsolicited bulk email. It is still spam even if it is not commercial. The thing that makes spam evil (namely that the total burden on the recipients to identify the mailings as unsolicited and delete them is by far disproportionately larger than the effort the spammer used to send them) is independent of the content of the spam; the evil inherent in using a few minutes of one's own time to make recipients spend days or months in total on deleting them is in no way predicated on the message in the spam being a commercial one. The public interest in not giving individuals the power to effect such waste of time is the same whether the messages are commercial or religious/political/whatever.

By the way, it says on p. 23f:

There is nothing in the record or arguments of the parties, however, suggesting that unsolicited non-commercial bulk e-mails were the target of this legislation
If that is true, the states's lawyers have been unforgivably negligent in not explaining to the court what the evil of spam is.

The second and more serious error comes on page 26:

Applying that inquiry under Williams in this case is relatively straightforward as Code § 18.2-152.3:1 would prohibit all bulk e-mail containing anonymous political, religious, or other expressive speech.
This is false. The court critically misses that the statue only applies to unsolicited mail, which is in no way the same as "all bulk email". It extends this omission in the next sentence:
For example, were the Federalist Papers just being published today via e-mail, that transmission by Publius would violate the statute.
This is an even more blatant mistake. Only the anonymous unsolicited bulk emailing of the Federalist Papers would violate the statue. And that would be good and proper, for all unsolicited bulk emailing is always evil, thoroughly vile, and with absolutely no redeeming societal value.

Anonymous bulk emailing is fine, if only it is solicited by the recipients. Nobody tried to ban e.g. anonymous postings to mailing lists (where the list policy allows for that).

Anonymous unsolicited mails are arguably also fine, provided that they are not done in bulk. Nobody tried to ban those either. As long as the anonymous sender takes the time to write a separate letter to each or a few recipients, the imbalance of burdens that is the evil of spam does not arise.

But mail that is both bulk and unsolicited - whether or not it is anonymous - has no rational place in this world, no matter what it contains, and does not deserve "protection" in any form, shape or amount.

[ Reply to This | # ]

is "right to anonymity" == "right to forgery"
Authored by: Anonymous on Monday, September 15 2008 @ 12:36 AM EDT
I can understand one's right to remain anonymous, and to speak freely, but isn't
forgery (as in mail headers) going too far to remain anonymous?

[ Reply to This | # ]

Trading away Free Speech instead of using a Spam Filter
Authored by: Anonymous on Monday, September 15 2008 @ 04:13 AM EDT
You'll always need to run a spam filter for overseas spam.

'Free Anonymous Speech' is unique to United State of America. The government of
the day always tries to subvert it under different guises (national security,
hate crime, pornography, etc). To see so many people not caring about their free
speech is very disturbing. Once you lose the right to speak out, it's gone.



[ Reply to This | # ]

awesome
Authored by: grouch on Monday, September 15 2008 @ 05:33 AM EDT
I've finally managed to get through all the comments and I am completely astounded by the number in which it is obvious that the commenter did not read the court ruling and misread the article about the ruling.

The ruling contains:

  • No court approval of spam.
  • No court protection of spammers.
  • No court support of trespass.

The ruling strikes down a law which, likely unintentionally, prohibits free speech but which, also likely unintentionally, does not prohibit the trespass of private property that makes spam so offensive. The law said, in effect, thou shalt not conceal thy identity from the cops when sending email. This court ruled that the previous court (Court of Appeals) was wrong to ignore this aspect of the law at issue and wrong to ascribe a meaning to the law that was not written in that law.

The legislature seems to have been more focused on tracking the perpetrator than on defining a perpetrator. A citizen may have very good, protected reasons for not wanting the government (the cops) to know his or her true identity and location. The legislature eliminated the protection in the attempt to eliminate something else. They did not adequately describe the 'something else' nor adequately describe what was wrong with the 'something else'. Forcing people to be branded with indelible identifiers is not a good way to end either trespass or fraud.

---
-- grouch

GNU/Linux obeys you.

[ Reply to This | # ]

  • awesome - Authored by: Anonymous on Monday, September 15 2008 @ 11:14 AM EDT
    • awesome - Authored by: Anonymous on Monday, September 15 2008 @ 11:24 AM EDT
    • no - Authored by: grouch on Monday, September 15 2008 @ 12:51 PM EDT
      • no - Authored by: saulgoode on Monday, September 15 2008 @ 08:35 PM EDT
        • no - Authored by: grouch on Monday, September 15 2008 @ 09:46 PM EDT
          • no - Authored by: PJ on Tuesday, September 16 2008 @ 12:13 AM EDT
    Point of failure; thoughts about comments on this story
    Authored by: IRJustman on Monday, September 15 2008 @ 09:08 AM EDT
    While I haven't read the actual text of the ruling, given what PJ is saying,
    this is inline with what grouch concluded:

    1. The court is NOT condoning spam.
    2. The court sees a case of trespass.
    3. Spamming should never be afforded any kind of protection.

    What it sounded like to me is more that the court found a showstopping breaking
    point in the particular law for this case. As a result the spammer got off on a
    technicality.

    For my part, while this does not reflect on Groklaw as a whole, I will openly
    say that I'm a bit ashamed to see that many people here would openly castigate
    PJ like this without seriously analyzing what she had to say about this ruling,
    and probably more importantly, reading and seriously analyzing the ruling
    itself, framing it with American governance clearly in mind (which I openly
    admit I have not done; I'm merely voicing my analysis of what PJ had to say
    about same).

    I will bluntly say that a good number of the remarks I saw for this story bear
    the hallmarks of what I normally come to expect on Slashdot. Those remarks as
    well as the stories themselves (yes, I know it's more of a signpost than
    anything else, though I do hold low regard for the competence of the site's
    editorial staff) are precisely why I stay away from Slashdot. While she does
    have her biases (who doesn't?), PJ has demonstrated enormous competence in her
    analysis, plus she's not afraid to openly tell us the truth, even if it hurts.

    --Ian.

    [ Reply to This | # ]

    Does freedom of speech outrank freedom of religion?
    Authored by: Anonymous on Monday, September 15 2008 @ 10:57 AM EDT
    Which ranks higher in the constitutional rights category, my freedom to choose
    my own religious beliefs, or someone else's right to freedom of speech to
    espouse their religious beliefs?

    I feel that my right to my own beliefs should outrank anyone else's freedom to
    try to cram their beliefs down my throat.

    [ Reply to This | # ]

    This is a very simplistic analysis
    Authored by: Anonymous on Monday, September 15 2008 @ 12:39 PM EDT
    The court appears to have decided that its easy/possible to craft laws to
    identify specific types of "speech".

    However, I think even the other laws mentioned would have a difficult time
    dealing with an e-mail looking a bit like this:

    ------------------------------------------------------------

    Subject: Why you must vote for XXXX

    XXXX is a candidate who you must think seriously about voting for. He is
    wondefull because blah... blah... blah

    Of course XXXX can't help you with ZZZZ, but this product can - guaranteed to
    fix your ZZZZ problems and give you a much happier sex life.

    So vote for XXXX to fix the economy, and buy ZZZZ to fix your sex life!

    ------------------------------------------------------------

    By stopping the advertising (SPAM) you would also be stopping protected speech
    (political). I suspect that the current view would be that the protection of
    political free speech overrides any concerns over SPAM.

    The current approach of attacking the delivery methods is broken. The real
    solution is to go after the companies/products being advertised.

    [ Reply to This | # ]

      Ruling was mis-guided
      Authored by: Anonymous on Monday, September 15 2008 @ 01:31 PM EDT
      The provisions of the law already sufficiently limited its scope to exclude "real" communication. By using the words unsolicited and bulk, the nature of prohibited e-mail is already sufficiently narrowed, IMHO as a long-time system and network administrator and one of the early spam-fighters on the 'Net. Anonymous speech is not in danger from the VA law - only abusive/harassing speech.

      The reality of e-mail and network technology is rapidly bypassing the ruling in any event. The use of SPF and DKIM to limit the faking of domain names in e-mail is a necessity for companies and ISPs wishing to avoid the pain of being falsely framed as the source of spam (and yes, that includes the already-existing religious spam and inevitable political spam - though I haven't seen any of that yet...). Spam, regardless of its nature, is a burden to both recipient systems and to the falsified "sender"'s system; to suggest that e-mail is "free" is to mistake the nature of e-mail.

      Those wishing anonymity should look more closely at blogs designed for that purpose, and at anonymizer services. Wikileaks has been doing an excellent job in that regard. Anonymous speakers insisting on using e-mail should stick to the same rules for any other mass e-mailer: use targeted opt-in lists.

      [ Reply to This | # ]

      Spam or Free Speach - Anonymous Speech in Email Upheld in Spammer Case - Updated
      Authored by: Anonymous on Monday, September 15 2008 @ 01:52 PM EDT
      So I have a choice between having to filter through tons of garbage or losing my
      free speech protections under the constitution.

      Neither Spam nor Pornography are forms of free speech I admire.

      However I will personally filter out this crud rather than give up my right to
      free speech. It is a critical founding part of this country that must be held
      up whenever possible. When your government is commiting crimes, and accuses you
      of giving aid and comfort to the enemy when you point this out, this very fine
      line, this precious protection under the constitution must be defended!!!!!

      [ Reply to This | # ]

      This topic needs a car analogy. Here goes....
      Authored by: vb on Monday, September 15 2008 @ 04:20 PM EDT
      If am driving in my car and see an anonymous flyer on public bulletin board
      that's free speech. But if that message is sent to my in-vehicle information
      system by impersonating a traffic alert message, that's not free speech.

      I own the in-vehicle information system and I don't consent to its use for fake
      messages. I could install message filters or have my service provider install
      message filters, but the point is that my in-vehicle information system is not a
      public resource.

      This ruling is about constitutionally protected ways of unwanted messages
      impersonating (and being sent along with wanted) messages. What the ruling
      misses is that those constitutional protections should only apply to public
      resources.

      [ Reply to This | # ]

      Hormel: "spam" OK; "SPAM" NG
      Authored by: DrHow on Monday, September 15 2008 @ 09:32 PM EDT
      Hormel owns a trademark on "SPAM" and they have something to say about use of the term to describe unsolicited commercial bulk e-mail. The say it here. I think they have a point and deserve the consideration they seek.

      When the court wrote, "... unsolicited commercial bulk e-mail, generally referred to as SPAM", they were violating Hormel's stated position and thus making it seem OK for others to do so as well. Note that the name "CAN-SPAM" in the CAN-SPAM Act of 2003 is actually an acronym for something else. The "SPAM" there does not actually refer directly to spam, so this further confuses the issue. (The complete phrase for which it is an acronym is "Controlling the Assault of Non-Solicited Pornography And Marketing".)

      [ Reply to This | # ]

      Infant safety
      Authored by: NigelWhitley on Tuesday, September 16 2008 @ 06:26 AM EDT
      As the debate seems likely to move on, I thought I'd add a comment regarding a
      repeated theme of many posts, particularly anonymous ones ironically enough.

      In the days before indoor plumbing the bathroom was wherever you put the bath,
      typically made of tin or wood. A bath wasn't a fixture, it was something to be
      emptied and hung up when bathing had finished. Generally even the smallest
      members of the family would use the same bath and this led to a cautionary
      phrase you may still hear today : "Don't throw out the baby with the
      bathwater". It has come to refer to the discarding of something precious
      when the intent is to be rid of something undesirable.

      That is the essence of the ruling here - don't throw out free speech when you
      only want be rid of spam. The curious aspect of many of the responses here is
      that they amount to "You can't make people keep dirty bath water".
      Time and again people seem to mentally edit out "the baby with" and
      argue furiously against the remaining idiocy. Some appear to go so far as
      thinking that the ruling indicates legal protection for the bath water rather
      than the baby.

      40 states have passed laws which dispose of spam without harming free speech.
      Why are some so keen to have Virginia legalise baby tossing?

      -----------------
      Nigel Whitley

      [ Reply to This | # ]

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