TidBITS#701/13-Oct-03
=====================

  The State of California has outlawed spam (again), but will
  legislation make a difference? Attorney Brady Johnson weighs in on
  why making spam illegal is a difficult proposition. Also in this
  issue, Jeff Carlson praises - and mourns - Netflix Fanatic, Apple
  announces that Mac OS X 10.3 Panther will ship 24-Oct-03, and we
  note the releases of iCal 1.5.1, iSync 1.2.1, StuffIt Standard
  Edition 8.0, StuffIt Engine 8.0.1, and ConceptDraw V.

Topics:
    MailBITS/13-Oct-03
    Mac OS X 10.3 Panther Slated for 24-Oct-03
    A Sad Fan of Netflix Fanatic
    When Spam Is Outlawed, Only Outlaws Will Spam
    Hot Topics in TidBITS Talk/13-Oct-03

<http://www.tidbits.com/tb-issues/TidBITS-701.html>
<ftp://ftp.tidbits.com/issues/2003/TidBITS#701_13-Oct-03.etx>

Copyright 2003 TidBITS: Reuse governed by Creative Commons license
   <http://www.tidbits.com/terms/> Contact: <[EMAIL PROTECTED]>
   ---------------------------------------------------------------

This issue of TidBITS sponsored in part by:
* READERS LIKE YOU! Help keep TidBITS great via our voluntary <------ NEW!
   contribution program. Our thanks this week to the University of
   Alabama At Birmingham Department of Radiology for its support!
   <http://www.tidbits.com/about/support/contributors.html>

* SMALL DOG ELECTRONICS: iBooks On Sale! <--------------------------- NEW!
   iBook G3/700 12 inch: $799! iBook G3/900 12 inch Combo: $1079!
   iBook G3/800 14 inch 256/30/Combo/56K: Only $1245!
   Visit: <http://www.smalldog.com/tb/> 802-496-7171

* FETCH SOFTWORKS: With FTP, Fetch does it all! Upload, <------------ NEW!
   download, mirror, and manage your web site. Fetch works
   with Mac OS X, Mac OS 9, Mac OS 8, and even System 7!
   Get your free trial version at <http://fetchsoftworks.com/>!

* Aladdin Systems: NEW & IMPROVED STUFFIT DELUXE 8.0 NOW SHIPPING!
   Faster compression, more file formats, Archive via Rename, burn
   to CD/DVD, and more! Manages StuffIt, Zip, and TAR archives!
   $30 OFF AT: <http://www.aladdinsys.com/store/tidbitsoffer.html>

* ConceptDraw V: The new standard for business and technical <------- NEW!
   diagramming in Mac OS X! New interface, WYSIWYG, more ready-to-
   use shapes, task-specific wizards, and Microsoft Visio import.
   Try ConceptDraw V Today! <http://www.conceptdraw.com/>

* MacAcademy: LEARN how to build and manage a dynamic Web Site. <---- NEW!
   CD-ROM training available for Dreamweaver, Flash, Fireworks
   and GoLive. See product descriptions at:
   <http://www.macacademy.com/tidbits.html> or call 800/527-1914

* Bare Bones Software TextWrangler 1.5 -- General-purpose tool for <- NEW!
   composing, modifying, and transforming text. Now with full
   AppleScript support! US$49. For more info, to download a demo,
   or to purchase a copy, visit <http://www.barebones.com/>.
   ---------------------------------------------------------------

MailBITS/13-Oct-03
------------------

**iCal 1.5.1 and iSync 1.2.1 Released** -- Apple updated its
  calendar and synchronization utilities last week, improving
  performance and adding support for more devices. iCal 1.5.1 tweaks
  the calendar's interface slightly, turning the Info window into
  a sliding drawer and adding the capability to set custom category
  colors. The new version also adds notes and alarms to To Do items,
  supports events in multiple time zones, and can publish or
  subscribe to calendars served behind firewalls. The update
  is a 6.2 MB download, and requires Mac OS X 10.2.3 or higher.

<http://www.apple.com/ical/>

  iSync 1.2.1 adds calendar synchronization for Sony Ericsson P800,
  Nokia 3650 and Nokia 7650 phones, plus the capability to transfer
  pictures associated with Address Book records that appear when
  calls come in from those contacts. Additional synchronization
  support has been added for Sony Ericsson T616 and Z600 phones.
  If you're a .Mac subscriber and use iSync to synchronize your
  Safari bookmarks, iSync can synchronize them for viewing and
  editing at bookmarks.mac.com. iSync 1.2.1 is a free 5.5 MB
  download and requires Mac OS X 10.2.3 or higher, and iCal 1.5.1
  for synchronizing calendars. Palm handheld device users must
  install the iSync 1.2 Palm Conduit, an 892K download (an obscure
  direct download link is provided at the bottom of the iSync
  download page). [JLC]

<http://www.apple.com/isync/>
<http://www.apple.com/isync/download/>
<http://bookmarks.mac.com/>


**StuffIt Standard Edition 8.0 and StuffIt Engine 8.0.1** --
  Aladdin Systems has released StuffIt Standard Edition 8.0, the
  most recent version of the bundle containing DropStuff, DropZip,
  DropTar, and the free StuffIt Expander. New features include
  faster compression, interface improvements to DropStuff, and
  support for more file formats (see "What's New in StuffIt Deluxe
  8.0" in TidBITS-698_ for details). StuffIt Standard Edition 8.0
  costs $50, with upgrades for registered users at $15. A free
  15-day trial version is available as a 7.2 MB download, and
  remember, downloading StuffIt Standard Edition is how you get
  the free StuffIt Expander.

<http://www.stuffit.com/mac/standard/>
<http://db.tidbits.com/getbits.acgi?tbart=07365>

  Don't stop downloading, though, since Aladdin has also released
  the free StuffIt Engine 8.0.1 Updater for all versions of StuffIt.
  It addresses an issue where a bundled Mac OS X application (as
  opposed to a Classic application or a single-file application)
  compressed in a .sit file (as opposed to StuffIt's more modern
  .sitx file format), won't launch after being expanded. The problem
  stems from the fact that the .sit file format predates (and thus
  can't store) Unix file permissions that are necessary for bundled
  Mac OS X applications to launch. To work around this limitation,
  Aladdin previously set the execution bit on all expanded files,
  but Apple warned against that approach, so Aladdin removed the
  workaround in StuffIt 8.0. Unfortunately, failing to set the
  execution bit properly proved too inconvenient for users, so the
  StuffIt Engine 8.0.1 Updater restores the previous workaround
  until Aladdin can develop a more elegant solution. You can avoid
  the problem with bundled Mac OS X applications by using the .sitx
  file format (everyone who has StuffIt Expander 7.0, which shipped
  with Mac OS X 10.2 and the last security update for Mac OS X
  10.1.5, can expand .sitx files). The StuffIt Engine 8.0.1
  Updater is a 3.9 MB download. [ACE]

<http://www.stuffit.com/mac/deluxe/updates.html>
<http://www.aladdinsys.com/support/techsupport/qanda.php?id=534>


**ConceptDraw V Released** -- CS Odessa has released ConceptDraw
  V, a major revision to their powerful business diagramming package
  (see "Make the Connection with ConceptDraw" in TidBITS-553_ for a
  full review of an earlier version). New features include XML for
  Visio support (enabling document exchange with Microsoft Visio),
  a BASIC-compatible built-in scripting language, more-capable
  connectors, named styles, new shape collections, document preview
  in the Open dialog, automatic saving and recovery, database
  integration via the scripting language, and user authorization.
  CS Odessa also completely rewrote ConceptDraw's graphics engine
  to provide anti-aliased text and WYSIWYG text editing. Finally,
  ConceptDraw V received a complete interface overhaul to add
  floating palettes and customizable toolbars, enhanced PowerPoint
  import/export, and support for more graphic file formats.
  ConceptDraw V Standard costs $150, with upgrades at $80. The
  Professional version costs $350 with $100 upgrades. [ACE]

<http://www.conceptdraw.com/>
<http://db.tidbits.com/getbits.acgi?tbart=06179>


Mac OS X 10.3 Panther Slated for 24-Oct-03
------------------------------------------
  by Mark H. Anbinder <[EMAIL PROTECTED]>

  Apple Computer announced last week that Mac OS X 10.3 Panther,
  this year's new version of the Mac OS X operating system, will
  be available at Apple's retail stores and authorized resellers
  at 8:00 PM on Friday, 24-Oct-03. Panther Server, or Mac OS X
  Server 10.3, will be released at the same time. Panther boasts
  a completely rewritten and redesigned Finder, offering faster
  searching and a user interface showing its first major evolution
  away from the remnants of the NeXT user interface. New features
  include Expose, a clever way of selecting from among all open
  windows; iChat AV, an audio- and video-enabled version of Apple's
  chat software; fast user switching; FileVault home directory
  encryption and other security enhancements; and behind-the-scenes
  synchronization of the user's iDisk to a local folder for offline
  work. (See "Mac OS X Panther Springs at WWDC" in TidBITS-685_.)

<http://www.apple.com/macosx/overview/>
<http://www.apple.com/server/macosx/>
<http://db.tidbits.com/getbits.acgi?tbart=07242>

  Panther supports all PowerPC G3- and G4-based Macs that shipped
  with USB ports (which eliminates a few older PowerPC G3 models
  that worked with Mac OS X 10.2 Jaguar), plus the new Power Mac
  G5s. It is available for pre-order immediately from the Apple
  Store or other Apple retailers like Small Dog Electronics at a
  single-user price of $130 or a "family pack" price (for up to five
  users at the same residence) of $200. Panther Server costs $500
  for the 10-client edition and $1,000 for the unlimited-client
  edition.

<http://db.tidbits.com/getbits.acgi?tlkthrd=2084>
<http://store.apple.com/>
<http://www.smalldog.com/category/x/x/Productivity/Software+Operating/
wag201/wag100201/>

  Anyone purchasing Mac OS X or a new Mac on or after 08-Oct-03, or
  anyone who's purchased a Power Mac G5 at all, is entitled to a Mac
  OS Up-To-Date upgrade to Panther for a $20 shipping and handling
  fee; a corresponding Panther Server offer is available to anyone
  who purchases Mac OS X Server or an Xserve today or later. The
  Up-To-Date policy of favoring Power Mac G5 owners, regardless
  of purchase date, has rankled users who ordered new PowerBooks
  when they were announced only a few weeks before the Panther
  announcement. Although Apple's official line is that non-G5 Macs
  are eligible for the Up-To-Date pricing only if bought after
  08-Oct-03, many PowerBook owners (including TidBITS readers
  and staffers) are reporting mixed success when entering their
  machines' serial numbers in Apple's online form; in a few cases,
  attempts late last week failed, but retries over the weekend were
  successful.

<http://www.apple.com/macosx/uptodate/>


A Sad Fan of Netflix Fanatic
----------------------------
  by Jeff Carlson <[EMAIL PROTECTED]>

  Not only am I a huge fan of Netflix, the popular online DVD rental
  service, it turns out that I'm one of its better customers. For
  $20 per month, Netflix sends me three DVD movies from a list of
  titles that I set up, which I can watch at my leisure without
  worrying about incurring late fees. After I've watched a movie,
  I slide the disc into a prepaid envelope, drop it into the mail,
  and wait a couple of days for the next movie on my list to arrive.
  Although I'm limited to checking three movies out at a time
  (you can pay more to get more movies at once), thanks to the
  fast turnaround I can watch potentially dozens of movies per
  month and still pay only $20. (For a more comprehensive look
  at Netflix, see "Worthy Web Sites: Get Your Kicks with Netflix"
  in TidBITS-604_.)

<http://www.netflix.com/>
<http://db.tidbits.com/getbits.acgi?tbart=06622>

  However, I've found that I don't churn through all that many
  movies in a month. In fact, during especially hectic work periods
  I've been known to hang onto the same two or three movies for a
  month or two - which totally blows the cost benefit for me, and
  no doubt makes me a prized catch for Netflix. With no late fees,
  we both win: I can still watch a movie when I get the chance,
  and Netflix doesn't have to pay delivery or stocking costs for
  my orders.

  Before you shake your head and wonder how I managed to pass basic
  high school math and economics classes, you must understand that
  only part of my monthly cost, in my view, is going toward
  supplying me with movies on a regular basis. I'm more than happy
  to pay because Netflix gives me what I've otherwise been unable
  to keep consistent: an ongoing list of movies to watch.

  When someone recommends a movie to me, it goes into my Netflix
  Queue. This is especially good for those classic movies that
  everyone I know has seen, but which I've somehow missed. With
  my persistent Netflix Queue, I no longer have to stand in Big
  Corporate Video Rental Store at 10:00 PM racking my brain to
  remember the title of the Oscar-winning film directed by that
  guy and starring what's-her-name.

  The problem with this system is that those worthwhile movies are
  often pushed aside by new releases or other movies that I'd rather
  see sooner. I can rearrange my Netflix Queue online, but it's a
  bit of a hassle: I need to renumber the items in text fields,
  apply the change, and hope I didn't mark two entries with the
  same number.


**Becoming a Netflix Fanatic** -- I'm obviously not the only one
  to find this process annoying, which is why I was intrigued to
  download the $10 shareware Netflix Fanatic, a Mac OS X application
  from Cricket Media that helps you manage your Netflix Queue
  without using a Web browser. You can use it to search for movies
  and add them to your list, see which movies you have checked out,
  view a list of movies you've selected but which haven't been
  released, and scroll through your rental history. Netflix Fanatic
  reads the cookie information from your Web browser, so you don't
  even need to configure it with login information.

  In Netflix Fanatic's Queue tab, you can simply drag titles to
  change their order, Shift-click to select multiple titles before
  rearranging them, and add personal notes to a title's text field.

  But what makes me slightly giddy is the capability to shuffle
  (randomize) the Netflix Queue at the click of a button. With
  dozens of movies in my list, I can hit Shuffle, close the
  application, and see what arrives next. It's a great way to get
  out of a movie rut (for example, it's easy to go on a science
  fiction bender).


**Here Today...** Sadly, Netflix Fanatic turned out to be too good
  to be true. As I started to write this article, I was surprised
  and dismayed to discover that the developer has been forced to
  stop distributing it due to a dispute with his employer (which is
  not Netflix) over who owns the program. Based on the note at the
  program's home page, the developer believes his employer has no
  ownership over software created during personal time and on
  personal equipment, but that he doesn't have the financial
  resources to fight back or become a full-time freelance
  programmer.

<http://www.cricketmedia.com/software/netflix/>

  However, existing copies of the program remain $10 shareware, and
  even though Cricket Media no longer distributes the program, you
  can still download Netflix Fanatic 1.1.4 from a mirror site in the
  Info-Mac Archive. It's also possible that another developer may
  rewrite Netflix Fanatic to avoid the problem.

<ftp://ftp.tidbits.com/info-mac/app/netflix-fanatic-114.hqx>

  I don't know anything more about the situation other than what
  the author has posted, so I can't speculate as to who's in the
  right here. But the end result is that a novel program that
  enhanced a popular service won't see any further development,
  which is a shame. I'll still use my copy, and enjoy the way it
  has broadened my movie viewing experience. If you use Netflix
  and run Mac OS X, you should grab a copy as well.


When Spam Is Outlawed, Only Outlaws Will Spam
---------------------------------------------
  by Brady Johnson <[EMAIL PROTECTED]>

  Spam is known to the law as "unsolicited commercial electronic
  mail," or UCE, and is usually defined as email in which someone
  is trying to sell someone else a product or service, or otherwise
  part recipients from their money. Recently, the State of
  California passed a tough new anti-spam statute that goes
  into effect on 01-Jan-04. The new California statute departs from
  others of its kind in a number of respects (something California
  is becoming increasingly good at doing). One of the more telling
  departures is that it uses the legally informal term "spam"
  throughout, although it does use the more legalistic "UCE" where
  a more specific definition is needed.

  I don't need to tell TidBITS readers that spam is a worsening
  problem afflicting the Internet. According to Brightmail, spam has
  increased from only 7 percent of total email traffic in April 2001
  to a whopping 54 percent in September 2003.

<http://www.brightmail.com/spamstats.html>
<http://www.brightmail.com/pressreleases/070103_uk_spam_summit.html>

  Sending spam carries very little cost to the spammer because the
  costs are borne by ISPs, which pass them on to consumers in the
  form of increased access charges. According to a report from San
  Francisco-based Ferris Research, spam cost companies in the United
  States over $10 billion last year - just imagine the late Carl
  Sagan saying "billions and billions" and you'll get the picture -
  in lost worker productivity, technical solutions, and wasted
  bandwidth. An abstract of the study is available free. The
  full study requires a subscription.

<http://www.ferris.com/offer/spam.html>

  Users are mad as hell about spam. A Harris poll taken two and a
  half years ago showed that 49 percent of users wanted an outright
  ban on spam. In a followup, titled "Large Majority of Those Online
  Wants Spamming Banned," Harris found that that number jumped to 80
  percent by late 2002, and it's probably even higher now.

<http://www.harrisinteractive.com/harris_poll/index.asp?PID=348>

  The number of complaints received by state Attorneys General and
  the U.S. Federal Trade Commission has skyrocketed, and consumer
  pressure to control spam is being felt at all levels of state and
  federal government. To date, 36 states have passed laws dealing
  with spam.

<http://www.spamlaws.com/state/>

  The Washington and California statutes are the most aggressive of
  the batch. Both have been vigorously challenged in the courts on
  various grounds, and both have ultimately been upheld. Heartened
  by these judicial affirmations, California has now enacted an even
  stronger statute that is already generating renewed controversy.


**A New Model** -- In 1998 California enacted one of the first
  and strongest anti-spam statutes in the nation (see "California
  Outlaws Spam" in TidBITS-448_). Defining spam as unwanted
  commercial email intended to sell a product or service, the
  law required spammers to identify their email by putting "ADV:"
  in the subject line or "ADV:ADLT" for adult-oriented email. While
  individuals were not granted the right to sue, ISPs were empowered
  to sue spammers for violations and to obtain a judgment for
  significant penalties. The law was promptly challenged. In
  Ferguson v. FriendFinders, Inc. a lower court found it to be an
  unconstitutional violation of the U.S. Constitution's interstate
  commerce clause. The California appellate court disagreed and the
  law remained in force.

<http://db.tidbits.com/getbits.acgi?tbart=05109>
<http://www.spamlaws.com/cases/ferguson.html>

  There is no indication that California's law has stemmed the tide
  of spam or even caused much spam to be labeled. Indeed, the volume
  of spam flooding the Internet has steadily increased despite such
  laws. Undaunted by failure, in September 2003 the California
  legislature enacted an even more sweeping statute.

<http://www.spamlaws.com/state/ca1.html>

  The new law keeps certain features of the old one. For example,
  spammers must still include "ADV" or "ADV:ADLT" in the subject
  line, and must provide an 800 number or valid email address
  allowing recipients to request removal. But the changes in the
  new law are very significant.

  The new statute completely bans all UCE unless specifically
  requested or authorized by the recipient. Like the old law, it is
  still limited to spammers using equipment in California or sending
  to recipients in California. But individuals now have the right
  to sue spammers for violating the law and to collect either
  actual damages or $500 per spam up to a limit of $1 million per
  "incident." An "incident" is "a single transmission or delivery
  to a single recipient or to multiple recipients of unsolicited
  commercial email advertisement containing substantially similar
  content."

  One of the more sweeping provisions of the new statute prohibits
  anyone from collecting email addresses from the Internet for the
  purpose of sending spam to Californians or from California. In
  short, California is targeting address harvesting regardless of
  where the acts occur if the intent is to use the addresses to
  spam Californians.

  There are a number of legal and practical hurdles this new statute
  will have to overcome. The following are some examples.


**Commerce Clause** -- The commerce clause is found in the U.S.
  Constitution, Article I, Section 8, Clause 3.

<http://www.house.gov/Constitution/Constitution.html>

  On its face, the commerce clause merely gives Congress the
  authority to "regulate Commerce with foreign Nations, and among
  the several States, and with the Indian Tribes." However, a huge
  body of law has grown up around this short phrase. The commerce
  clause issues are fascinating (well, to me anyway). Unfortunately,
  they are also incredibly complex and far beyond the scope of this
  article. So I will simply point out that the issue exists, that
  there is a lot of debate over how the commerce clause should be
  applied to Internet commerce, and that the issues are far from
  resolved. Partly because of the commerce clause issues, when
  Congress enacts legislation on spam it may abrogate state laws
  either entirely or in part.

  Implicit in the commerce clause is the "dormant commerce clause."
  That doctrine holds that there are certain areas in which states
  cannot legislate even if Congress has not acted. The principle
  commerce clause challenges to spam arise under the dormant
  commerce clause doctrine. The argument runs like this:

  State boundaries are irrelevant to the Internet, and thus to spam.
  All Internet email is necessarily interstate. It travels across
  interstate lines and is relayed via servers that could be anywhere
  in the world. Any regulation by any state necessarily affects
  interstate commerce, and one state's laws will necessarily affect
  spammers in other states. Thus, argue opponents of spam
  legislation, no state regulation of spam is possible without
  violating the commerce clause. Only Congress can legislate
  over such an inherently interstate activity.

  The previous California statute survived a dormant commerce clause
  challenge because the court found that the statute applied only
  to (a) spammers using equipment located in California; and (b)
  spammers sending email to California residents. Because the effect
  of the law restricted only California-specific conduct, the court
  found that the commerce clause was not violated.

  I anticipate a renewed challenge to the new statute under the
  commerce clause. I suspect that at least one clause in the new
  statute will not fare so well under a commerce clause analysis,
  and will be stricken. The new statute makes it "unlawful for
  any person or entity to collect electronic mail addresses posted
  on the Internet if the purpose of the collection is for the
  electronic mail addresses to be used" to initiate or advertise
  in an unsolicited commercial email advertisement to or from
  California. This provision applies to everyone, everywhere,
  who is collecting email addresses if the purpose is to spam
  Californians - regardless of whether they actually carry
  through on it.


**First Amendment** -- There has been much hoopla recently over
  a Colorado federal court decision blocking the Federal Trade
  Commission's (FTC) "Do Not Call" list because it may violate
  telemarketers' free speech rights. Telemarketing is similar to
  spam in a number of respects, and the arguments leveled against
  the "Do Not Call" list can easily be applied to spam laws. Indeed,
  advocates of spam have consistently argued to state legislatures
  that anti-spam laws violate the First Amendment. However, to date
  those arguments have not been a key part of the court decisions
  upholding the statutes.

  The federal court of appeals has now stayed the Colorado federal
  court's decision and the "Do Not Call" list is moving forward.
  However, I anticipate that we will see additional First Amendment
  challenges to spam laws, and the California statute is ripe for
  challenge.


**Jurisdiction** -- Most of the complaints about the jurisdiction
  of a state to go after spammers in another state or abroad are
  actually enforcement issues. The legal issues of when a state
  has jurisdiction over out-of-state entities are fairly well
  established.

  I believe that all states have enacted a form of law called a
  "long arm statute." In essence, long arm jurisdiction extends
  to any person or entity who takes advantage of the benefits
  of a state's laws. Even minimum contact with a state confers
  jurisdiction if the contact is enough to invoke the protections
  of state law. So, for example, a company that sells products
  via a catalog and has customers in a particular state can sue
  a customer under state law for failing to pay. But that company
  can also be sued by the customer under state law for failure to
  deliver or other breaches.

  There is little question that a spammer soliciting sales in
  California is subject to California law. But this is a good point
  to segue from the legal challenges to the practical ones. A big
  practical question is: how do you find spammers?

  In order to start a lawsuit, the plaintiff must physically hand
  the defendant a copy of the complaint. This is known as "service
  of process." It is difficult to serve someone unless you can find
  them. In the 1998 case that I helped Adam and his fellow TidBITS
  editors bring against an outfit called "WorldTouch Network," the
  defendant played a shell game with false company offices, at least
  two fake names, and multiple fictitious addresses. After the
  litigation started, he actually changed his business address
  once a month. (See "TidBITS Sues Spammer" in TidBITS-439_, and
  "Spam Damned in Washington State" in TidBITS-583_.)

<http://db.tidbits.com/getbits.acgi?tbart=05000>
<http://db.tidbits.com/getbits.acgi?tbart=06458>

  [Editor's Note: Our spammer, Christopher Joyce, is still in
  the low-carbohydrate food business with O' So Lo Foods, and
  we periodically hear about him from ex-employees or potential
  investors. We're keeping an eye on the situation; although our
  default judgment is good for ten years, we have no particular
  desire to be vindictive. -Adam]

<http://www.osolo.com/>

  The solution to not being able to find someone to serve papers is
  to use a process called "service by publication," in which the
  court approves publication of the complaint in the local papers.
  After a period of time, the complaint is considered to have been
  served and the case can proceed.

  That may solve the legal issue, but it does nothing to solve the
  practical problem. After all, if you can't find the defendant,
  how are you going to collect on your judgment? At some point, it
  becomes necessary to identify and locate the defendant physically.


**Enforcement** -- Under long-arm statutes, even off-shore
  merchants doing business in the U.S. are subject to U.S. law,
  including the laws of the states they sell in. If the spammer is
  a legitimate business that values its reputation and customers,
  there is little problem enforcing a judgment. But most spammers
  are anything but legitimate business. They do everything possible
  to mask their identities and location, including hiding in other
  countries that don't have or enforce spam laws. If you obtain a
  judgment in a California court, will you try enforcing it in
  China? The Bahamas? It is highly unlikely. Even in countries that
  have reciprocal enforcement of judgments treaties with the U.S.,
  the costs of enforcing a judgment abroad are usually prohibitive
  for the average spam victim.


**Collection** -- But let's say that you are one of the fortunate
  ones who locates, serves and gets a judgment against a spammer.
  Will you collect your riches? Again we run into the disparity
  between legitimate businesses who care about their reputation
  and customers, and the majority of spammers who care nothing for
  either. It is likely that even having identified the live body
  of the spammer, a plaintiff will have to pursue execution of the
  judgment. No, that doesn't mean executing the spammer (popular
  though that option might be with some people). "Execution" is
  legalese for the court procedures that include garnishing wages,
  bank accounts, and the like. Execution can be costly, time
  consuming, and often will net the plaintiff only a portion of
  the judgment. Of course, that will be further reduced by the
  amount of attorney fees racked up in the course of executing
  on the judgment.


**Conclusion** -- The new California statute definitely pushes the
  envelope. It bans all unsolicited commercial email unless the
  recipient has agreed to receive it. It creates a private right
  of action allowing individuals to sue for damages for each item
  or incident, and it bans harvesting email addresses for the
  purpose of spamming Californians.

  The new statute will inevitably draw court challenges. While some
  of the statute may be stricken as overbroad or violating federal
  law or the Constitution, most of it appears to be in line with law
  that has already survived such challenges. The law is deliberately
  modular, or in legalese "severable," so that portions can be
  excised if a challenge is successful, while leaving the rest of
  the statute intact.

  Unfortunately, spam laws won't stop spam, nor will they even stem
  the tide, if experience so far is any guide. The old California
  statute did not reduce or even noticeably slow the increase in
  spam. I hold no great hope that the new statute will do any
  better. Legitimate businesses have already altered their practices
  to comply with existing spam law, and will no doubt do their best
  to comply with the new one. But legitimate business accounts for
  only a small amount of the spam we receive. Most spammers will
  simply keep on spamming. The new law will doubtless create a
  flurry of new court actions against spammers, resulting in more
  default judgments that can't be collected. And the spammers will
  keep spamming.

  Lest I sound unduly bleak, I am not suggesting that there is no
  solution to the spam problem. However I do not believe that the
  law will stop or reduce spam.

  Legal remedies are great for deceptive, misleading and fraudulent
  marketing practices - but those things have been illegal for a
  long time. Spam laws should be able to give law enforcement needed
  tools to go after spammers (focusing on the most egregious ones),
  and to allow individuals who are so inclined to go after them as
  well. But the Internet is a global phenomenon. State boundaries
  are largely irrelevant to the Internet, and state spam laws
  will do little or nothing to solve the larger problem. On the
  other hand, passing more laws amounts to more regulation of the
  Internet, and sets an increasingly popular precedent for further
  regulation. Be careful what you wish for!

  I believe that the solution to the problem of spam is
  technological. For example, I receive between 100 and 200 spam
  messages each day, but 98 percent of those are filtered out by
  Eudora 6.0's Bayesian spam filter. True, I must regularly review
  the collected mess of Nigerian political refugees looking for a
  kind stranger to help launder a few million dollars, the offers
  to enlarge various body parts (some of which I don't have), and
  the ever popular get-rich-quick schemes so that I can find any
  false hits and rescue them. But as annoying as this is, it is
  currently the cost of using a largely unregulated forum such
  as the Internet in a capitalist society that values free speech
  and privacy.

  [Brady Johnson is a grouchy attorney in Seattle who really, really
  hates spam.]


Hot Topics in TidBITS Talk/13-Oct-03
------------------------------------
  by TidBITS Staff <[EMAIL PROTECTED]>

**Early G3s and Panther** -- Readers speculate about which
  machines Mac OS X 10.3 will support. Although early beige Power
  Mac G3s aren't officially supported, will Panther run on them
  anyway? (2 messages)

<http://db.tidbits.com/getbits.acgi?tlkthrd=2084>


**Palm and Mac compatibility** -- Palm's new handhelds include
  updated built-in applications, but how well do they synchronize
  to the Mac? (8 messages)

<http://db.tidbits.com/getbits.acgi?tlkthrd=2081>


**Mac OS X 10.2.8 problems** -- Even though Apple pulled its
  problematic Mac OS X 10.2.8 update and replaced it with a
  "fixed" version, some people report problems with the new
  revision. (6 messages)

<http://db.tidbits.com/getbits.acgi?tlkthrd=2083>


**Praise for TidBITS in HTML** -- See, it is possible to make
  HTML-formatted email that isn't revolting. (3 messages)

<http://db.tidbits.com/getbits.acgi?tlkthrd=2080>



$$

 Non-profit, non-commercial publications may reprint articles if
 full credit is given. Others please contact us. We don't guarantee
 accuracy of articles. Caveat lector. Publication, product, and
 company names may be registered trademarks of their companies.

 This file is formatted as setext. For more information send email
 to <[EMAIL PROTECTED]>. A file will be returned shortly.

 For information: how to subscribe, where to find back issues,
 and more, email <[EMAIL PROTECTED]>. TidBITS ISSN 1090-7017.
 Send comments and editorial submissions to: <[EMAIL PROTECTED]>
 Back issues available at: <http://www.tidbits.com/tb-issues/>
 And: <ftp://ftp.tidbits.com/issues/>
 Full text searching available at: <http://www.tidbits.com/search/>
 -------------------------------------------------------------------






Reply via email to