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Hi:
Draw
whatever conclusions you choose for yourself. I have not taken the bar in
any state and am not qualified to enter into any argument. I reserve the
right to base my lay-person opinion
on the anecdotal evidence from the first-hand and
personal conversation with active spam operators who feared AOL due to VA
law.
a) You
may wish to consider, whether "using" a computer that is located in VA gives VA
courts jurisdiction.
b) Note that "using" a computer is defined as "causing or
attempt to cause" a computer to "perform or stop performing ... operations"
You
may wish to consider whether that helps to allege an offense that is not limited
by CAN-SPAM, e.g. claiming service disruptions due to spam volume or usability
impairments for end users who have too much Spam in their
mailbox.
c) "Uses a computer or computer network
with the intent to falsify or forge electronic mail transmission information or
other routing information in any manner..."
(You may wish to consider,
whether this goes towards your "exception" that you
cited.)
d) "Knowingly sells, gives, or otherwise distributes or possesses with
the intent to sell, give, or distribute software that
(i) is
primarily designed or produced for the purpose of facilitating or enabling the
falsification of electronic mail transmission information or other routing
information;
(ii)
has only limited commercially significant purpose or use other than to
facilitate or enable the falsification of electronic mail transmission
information or other routing information; or
(iii)
is marketed by that person acting alone or with another for use in facilitating
or enabling the falsification of electronic mail transmission information or
other routing information
is
guilty of a Class 1 misdemeanor."
(You
may wish to consider, whether this defines offenses that CAN SPAM does not
cover/limit.)
I'm
not asking or expecting anyone's agreement.
Best
Regards
Andy Schmidt
Phone: +1 201 934-3414 x20
(Business)
Fax: +1 201 934-9206
Andy,
Yes,
there are many different laws that spammers break, most of which are not
covered under CAN-SPAM. CAN-SPAM does though preempt many state
anti-spam laws, or at least parts of them. The courts are working out
what is and is not preempted. For better or worse, some of these state
convictions might be overturned based on jurisdiction as things progress
through the appeal's system. Having spammers held to 50 different
standards for conduct without a good method of identifying who is where is a
bit unfair, kind of like expecting an ecommerce site to collect taxes
according to every county tax rate in the country. It all depends on who
they are going after of course. The groups that are dictionary attacking
servers all over the place with as many as 3 million random addresses per day
are clearly going beyond simple spamming, and other things like fraud and
false advertising also extend beyond CAN-SPAM, though have been specified in
parts of state anti-spam laws. CAN-SPAM's state law preemption reads as
follows:
"This Act supersedes any statute, regulation, or rule of a State
or political
subdivision of a State that expressly regulates the use of
electronic mail to send
commercial messages, except to the extent that
any such statute, regulation, or
rule prohibits falsity or deception in
any portion of a commercial electronic mail
message or information
attached thereto."
The North Carolina residents that were
prosecuted under Virginia's spam laws recently were primarily flagged for
fraud. They were advertising scams promoting $75/hour FedEx refund
processor software, and received about $400,000 in orders for it. To
quote one Web source, "VA authorities were able to assert long-arm
jurisdiction over them since they derived economic benefit and caused tortious
harm to Virginia residents as well as Virginia equipment." (of course I
can't vouch for the accuracy of that statement)
I personally would like
to see clear as day laws governing spam so that authorities wouldn't be
apprehensive to go after these people, or turned off by the never-ending
appeal process as the vaguest parts of the laws are tested. Maybe they
aren't prosecuting these people for other reasons such as a lack of focus on
the problem. Neither Bill Clinton nor George Bush had an appreciation
for E-mail. I think that Bill Clinton was only known to have sent a
single E-mail while in office. I doubt that most of those in Congress
read their own E-mail, and they aren't likely exposed to the people blocking
the spam for them (why else would they have legalized half of it with a
preemptive law?).
I don't believe marketing a legitimate product or
service from one's own servers would constitute a violation of either
law. The trouble with doing it that way is that anything that is static
and comes with significant volume is generally widely blacklisted within the
first week of activity, often the first 24 hours. It makes being a
static spammer kind of tough. I've noted more and more that static
spammers are moving their hosting to other countries and service providers
that don't sub-delegate IP space, and don't require or oversee the reverse DNS
information. Some even set themselves up as fake hosting operations and
then jump around their IP space with spam blocks pretending to not be directly
associated with the activity. None of this seems to constitute breaking
the law, though I'm sure that almost all of them are in other ways (like not
honoring opt-outs, subject tagging themselves,
etc.).
Matt
Andy Schmidt wrote:
The motivation for cleaning was not black-listing, it was AOLs
aggressive pursuit of Spammers supported by VA state law that is one of the
(if not "the") toughest with regards to computer abuse (including
SPAM). Since many Spammers DO operate out of the U.S. and/or market
goods that are delivered from the U.S., it doesn't matter much if they were
trying to hide behind a China server.
Abusing a computer system in VA is subject to VA law - even if the
other party sits in another state. Has nothing to do with Interstate
commerce.
Heck, I have to file sales tax returns in many states that I've never
set foot in - just as long as THEIR state law finds some way to define
"nexus".
Best Regards
Andy Schmidt
H&M Systems Software, Inc.
600 East
Crescent Avenue, Suite 203
Upper Saddle River, NJ
07458-1846
Phone: +1
201 934-3414 x20 (Business)
Fax: +1 201
934-9206
http://www.HM-Software.com/
Anyone can
spam legally under CAN-SPAM, however almost no one follows the exact
letter of the law (for instance adding "ADV" to subject lines). I'm
not sure where federal and state law intersect on this one, but it would
seem to be primarily a federal issue since it generally involves
interstate commerce.
My own personal experience is that the clearly
illegal stuff (forging/zombie spam) that CAN-SPAM definitely targets has
grown immensely in the last year, and their tactics have become
effectively DDOS attacks on mail servers (violating yet other laws).
Spamhaus has pictures of some of these guy's houses even (tape recordings
of threats too), yet all we hear about are these occasional civil
lawsuits, and a smattering of criminal actions while they keep going with
impunity. The RIAA has been more effective at stopping file sharing
than the government has been in stopping spam, and that's not saying
much. In fact the most remarkable thing that the government has done
is cave into industry and draft a law called CAN-SPAM that legalizes half
of it, and supersedes many state laws that went further.
I don't
doubt that you were told this however. Spamming AOL without some
form of obfuscation is pretty much going to be useless because they will
get blacklisted rather quickly otherwise.
Matt
Andy
Schmidt wrote:
Well, I CAN tell you that I have personal contacts with Spammers
(who keep wanting me to take their business) - and from casual
conversations about the "industry" I know that several DO
clean any AOL mailboxes from their lists before doing campaigns out of
fear of litigation based on VA law.
Best Regards
Andy Schmidt
H&M Systems Software, Inc.
600 East
Crescent Avenue, Suite 203
Upper Saddle River, NJ
07458-1846
Phone:
+1 201 934-3414 x20 (Business)
Fax: +1 201
934-9206
http://www.HM-Software.com/
This
sounds like an urban legend to me. Keep in mind that there was
some news release a few weeks ago that indicated AOL was seeing
dramatically less spam traffic. I think it is likely that AOL
has succeeded in blocking more spam, and the article was rehashed by
someone that didn't understand the topic and assumed that this meant a
drop in spam. This used to happen all the time, even in industry
mags, back when the Internet was becoming a big deal. Same thing
with spam now. I'm sure that they mess up articles about
medicine, astronomy, etc., and we just don't know enough to see
through the mistakes.
Matt
Dan Geiser wrote:
I don't get this article at all. How is this any different then sending
e-mails with using domains that you have no intention of ever using? Why
would you want to register the domain name and then associated yourself with
a domain used in a spam mailing? And from a technical standpoint why would
a distributed DNS system be overloaded by trying to lookup bogus domain
names?
----- Original Message -----
From: "Kami Razvan" <[EMAIL PROTECTED]>
To: <[email protected]>
Sent: Tuesday, January 11, 2005 2:50 PM
Subject: [Declude.JunkMail] Interesting tactic..
<http://www.eweek.com/article2/0,1759,1749328,00.asp>
http://www.eweek.com/article2/0,1759,1749328,00.asp\
"One troublesome technique finding favor with spammers involves sending
mass
mailings in the middle of the night from a domain that has not yet been
registered. After the mailings go out, the spammer registers the domain
early the next morning."
Hmmmm
Kami
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