On Thu, 2005-11-17 at 12:23 -0800, Jeremy McNamara wrote: > Hermann Wecke wrote: > > > Don't threaten if you don't want to persue the case. Will look like a > > fool - or a kid. > > > > Sometimes all it takes is the threat, but yes you should be ready to > take action if you threaten.
Technically speaking threatening legal action is extortion. Why lawyers and collection agencies are very clever in saying 'It is our legal right to bring a suit' rather than 'we are gonna sue you'. They imply they will sue but never flat out say it. In US v Enmons however the supreme court ruled that to some point these types of threats are legal, there is a burden of proof that is required on the part of the one making the threat to show they didnt violate an extortion statute, and that case was limited to the federal extortion statute, most states dont have such a provision. There are alternatives. The CAN-SPAM act states that if someone requests to be unsubscribed that must be honored. Further 18 USC 1030(g) allows for civil suits for any violation of 1030. 1030(a)(5) states that accessing a computer without authorization or exceeding authorized access is a crime. The request to be removed is putting the other party on notice that they are no longer authorized to access that network resource. There are a few other elements in 1030 that must be met, however post patriot act its WAY easier to be guilty of it. And with 1030 it can go either criminal (only the US Attys office can being felony charges on the federal level) or civil (1030(g) specifically lets any person file for a civil case if a violation occurs). AOL has used 1030(g) to go after spammers as have a few other larger companies. The same logic can be applied to this situation. In the AOL case it was also found that a violation of the terms of service constitutes exceeding authorized access, one of the 3 infringing acts in 1030(a)(5). -- Trixter http://www.0xdecafbad.com Bret McDanel UK +44 870 340 4605 Germany +49 801 777 555 3402 US +1 360 207 0479 or +1 516 687 5200 FreeWorldDialup: 635378 http://www.sacaug.org/ Sacramento Asterisk Users Group
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