Your Constitutional Right To Spam → Re: No

One problem, you knowingly have an e-mail account on a PUBLIC network... It is the same thing as me mailing an empty envelope to your house. The only difference is that it is in cyberspace.

-Tzale

So what. I bought a house on a public street. Doesn't mean anyone can walk in whenever they feel like it

"It is the same thing as me mailing an empty envelope to your house."

I think it's a bit different. If you mailed an empty envelope to my house without a stamp and expected me to pay the postage due (which is what spam does), then yes, I agree with your analogy. But in most cases the post office would refuse to process your envelope and return it to you.

And as for the ad banners on a site, they don't search me out and upload their messages into my mailbox; I have to go to them. That's not what spammers are doing. They ARE searching me out and sending their stuff to me.

So I can understand that they have the right to create spam but I don't see that they have the right to force me to underwrite their chosen form of distribution, any more then I should have the right to use MY right to free speech by writing a nasty reply and sending thirty or forty million copies to their address or by hitting them with a DOS attack.

I have some problems with your analogies. When I purchased Internet access, I didn't choose to merely walk down a public street. I paid to get into a taxi. That doesn't give anyone the right to get into my taxi just because it's traveling down a public street.

There are laws against unwanted postal mail to your house too. The USPS is required by law to stop any mail you object to. If anyone wants references, I'll provide them.

I agree with you that it's a slippery slope. But, you're Libertarian nonsense is just that: Nonsense.

Mark

A lot of people don't realize it, but you have the legal right to force the postal service to prevent unwanted mail. You can actually sue the offender in your local small claims court for violations after following due process.

See the following:

To stop unwanted junk mail, the post office provides Form 1500.[1] It is officially called an "Application for Prohibitory Order," the postal equivalent to a restraining order. Ignoring a Prohibitory Order is considered an unlawful act. Under the law[2] which enables Form 1500, the Postmaster is authorized to notify the Attorney General of violations of an Order. The AG is authorized to seek an order of compliance from a District Court. Continued violations may be punishable by the court as contempt of court. (At a minimum, you would have the right to sue in your jurisdiction's Small Claims court for every mailing in violation of a Prohibitory Order. You would most likely receiving a default judgment since the mailer is unlikely to travel to your jurisdiction to defend themself against an indefensible act. Perhaps selling judgments to a collection agency at 50-cents on the dollar.).

To better understand the law and problems you may encounter at the Post office, the law targeted smut mail. But, the definition of "objectionable, erotic, sexually explicit, etc." is highly subjective. In 1970 the mass-mailing industry challenged the law. The Supreme Court rejected the mass mailers' argument and ruled[3] that Congress intended to

"entrust[] unreviewable discretion to the addressee to determine whether or not the advertisement was 'erotically arousing or sexually provocative.'"[4]

Therefore, even though Form 1500 emphasizes "erotically arousing or sexually provocative," don't feel deterred. The Supreme Court said that the statute gives you the right to stop even "dry goods catalogs" for any reason you choose.[5]

Simply complete the form, take it to the post office with the actual piece of junk mail, and insist that they accept your Application for a Prohibitory Order. If the postal employee working the counter objects to your definition of "erotically arousing or sexually provocative," show them the Supreme Court quotes provided in this article. Show them the actual wording of the law.[6] If that doesn't work, refer them to the wording of Form 1500[7]. And finally, Postal Bulletin 21977, which says:

"Postmasters MAY NOT REFUSE to accept a Form 1500 because the advertisement in question does not appear to be sexually oriented. Only the addressee may make that determination."[8]

Escalate to supervisors (and the postmaster) if necessary. Don't be ashamed to use the law the way the Supreme Court interpreted Congress's intent to protect YOU. Don't feel sorry for troubling the Post Office. The Court even noted the Post Office's role as enabler in the junk-mail industry.[9]

[1] »www.usps.com/forms/_pdf/ ··· 1500.pdf

[2] 39 USC Sect. 3008, (»www.law.cornell.edu/usco ··· 08.shtml) previously codified as Sect. 4009.

[3] Rowan, DBA American Book Service, et al. V. United States Post
Office Department, et al. 397 U.S. 728. (»supreme.justia.com/us/397/728/).

[4] Ibid., p. 739, footnote 6. (»supreme.justia.com/us/39 ··· .html#F6)

See also:

"The section was intended to allow the addressee COMPLETE AND UNFETTERED DISCRETION in electing whether or not he desired to receive further material from a particular sender."

P. 734, emphasis added. (»supreme.justia.com/us/39 ··· html#734).

[5]

"Both the absoluteness of the citizen's right under Sect. 4009 and its finality are essential; what may not be provocative to one person may well be to another. In operative effect THE POWER OF THE HOUSEHOLDER UNDER THE STATUTE IS UNLIMITED; HE MAY PROHIBIT THE MAILING OF A DRY GOODS CATALOG because he objects to the contents or indeed the text of the language touting the merchandise."

Ibid., p. 737, emphasis added. (»supreme.justia.com/us/39 ··· html#737). See also:

"We therefore categorically reject the argument that a vendor has a right, under the Constitution or otherwise, to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even "good" ideas on an unwilling recipient."

p. 738. (»supreme.justia.com/us/39 ··· html#738).

[6]

"Whoever for himself, or by his agents or assigns, mails or causes to be mailed any pandering advertisement which offers for sale matter WHICH THE ADDRESSEE IN HIS SOLE DISCRETION BELIEVES TO BE erotically arousing or sexually provocative shall be subject to an order of the Postal Service to refrain from further mailings of such materials to designated addresses thereof."

Supra note 1, para. a, emphasis added.

[7]

"The attached mailpiece, from the mailer identified below, offers for sale matter THAT I BELIEVE TO BE erotically arousing or sexually provocative and therefore is a pandering advertisement"

Supra note 1, p. 2, emphasis added.

[8]

"-- The prohibitory order. This order aids in protecting customers from receiving pandering advertisements through the mail. An addressee may obtain a prohibitory order against the mailer of an advertisement that THE ADDRESSEE DETERMINES, IN HIS OR HER SOLE DISCRETION, to be offering matter for sale that is erotically arousing or sexually provocative, as defined in title 39, United States Code, 3008. POSTMASTERS MAY NOT REFUSE TO ACCEPT A FORM 1500 because the advertisement in question does not appear to be sexually oriented. Only the addressee may make that determination. The order prohibits the mailer from sending any further mail to the applicant (and his or her eligible minor children included in the application), effective on the 30th calendar day after the mailer receives the order."

PB 21977, July 30, 1998, p. 13, emphasis added. (»www.usps.com/cpim/ftp/bu ··· 1977.pdf).

[9]

"Today's merchandising methods, the plethora of mass mailings subsidized by low postal rates, and the growth of the sale of large mailing lists as an industry, in itself, have changed the mailman from a carrier of primarily private communications, as he was in a more leisurely day, and have made him an adjunct of the mass mailer who sends unsolicited and often unwanted mail into every home. ... whether measured by pieces or pounds, Everyman's mail today is made up overwhelmingly of material he did not seek from persons he does not know. And, all too often, it is matter he finds offensive."

Supra note 3, p. 736. (»supreme.justia.com/us/39 ··· html#736).

And you DO have the right to send them back "hate mail." A spammer sending mail to your house with postage (as they always do with unsolicited mail), is similar to e-mail spam.... Both consume YOUR time and SPACE in your mailbox (physical or digital). This type of law is very complex and still developing.. It isn't as black and white as many here would like it to be. As IT professionals, it may seem clear. But you also have to consider constitutional rights.

For the most part, cyberspace should be seen as the same thing as the physical world.. With a few exceptions.

-Tzale

How does this correspond to spam email with forged headers and no valid reply-to address?

I'm curious how your Libertarian nonsense justifies government enforcing a valid reply-to (or, protects the sender from that "coercion").

Mark

How do you reply to unsolicited mail (postal) with a false return address? You're really going overboard here, and I'm not interested in playing into your BS. Everything that needed to be said has been said. And I agree with the Virginia Court, as they interpreted existing law correctly IMHO...

I'm not interested in making everything a debate because I'm a libertarian.. I'm just pointing out to you what IS and what is NOT possible legally.. That is all. This is the exact reason why we have lawyers. Someone needs to have the backbone to understand that the law can't be bent for special occasions.. And a lot of times it is NOT in your favor!

-Tzale

Please investigate how the USPS deals with fraudulent return addresses.

You're trying to distill this down to Libertarian simplicities. The problem is, they are simplicities. Unrealistic.

Mark

I am fully aware of how they deal with fraudulent return addresses.... It still is POSSIBLE.

This really has nothing to with MY beliefs... It has to do with OUR Constitution and the law.... Obviously, the court agrees with me. My philosophy is to be objective and rational. Not a blind libertarian. The law should be enforced as it exists.

-Tzale

It's possible to murder people even though we have laws against murder. Are you advocating dissolution of murder laws because they aren't perfect?[Chuckle]. You're presenting your Libertarian views of the Constitution as the only legitimate view.

"This isn't about my warped interpretation of the Constitution, it's about our constitution that I'm arguing a nonsensical interpretation of."

Mark

E-mail was not designed to be abused, so what is your point?
You're not making any sense. Seriously, why do people use the "so then you must be advocating blah blah blah" line over and over? It gets annoying.

The problem in this country is people like yourself who have no clue whatsoever what the Constitution stands for. No wonder Obama and that hack Pelosi are in power. The Constitution is not open to much interpretation. For the most part, my Constitutional views fall inline with educated scholars of the Constitution who don't have a hand in the basket.

-Tzale

The Bill of Rights was about providing individual liberty. A person has a right to protect their property from thevies.

My personal email box is not a public resource to be consumed by anyone who feels like it.

One right does not overpower another right. Now, before you argue that YOUR right to a "clean" inbox is being violated by his so called "freedom of speech," let me remind you that you have NO right to a "clean" inbox on an OPEN network. Of course, morally you would have a right.. (which I would agree with)... Since your e-mail inbox is on a public network, your "resources" are not being "stolen," just used.... :-/ Again, before you get angry, this is my take on CURRENT law as it applies to the situation.

You have your own view. I have my own.. I happen to believe you are wrong.. You have an e-mail box which is OPEN to the public to send information to.. If you don't like receiving e-mail from strangers, then you should setup an account that bounces any incoming e-mail from unknown senders. Admittedly, the law is not as black and white as it should be when it comes to new forms of technology....

If the issue at hand was you sitting in your backyard, and people were yelling at you (nasty things), then I would side with you and against the individual(s) freedom of speech...

I agree, spammers are a major problem. I just disagree with how best to get rid of the problem.

-Tzale

What the Constitution says and what you believe are two different realities. Last I checked there was a caveat called Case Law.

No...
My e-mail address is a PRIVATE address, one that I do not choose to advertise, my home address is another thing, in general it is public, in that anyone on PUBLIC property can discern my home address, but NOT my name, unless they check PUBLIC records and I have allowed my name to be attached to those PUBLIC records.

I am starting to think you just don't understand the difference.

Of course. And it doesn't trump the Constitution.
There really are not enough rulings on the books to determine whether or not your e-mail inbox is the same as physical "property." I personally consider it to be a renewable resource... And when connected to a public network, the owner should expect the resource to be fully consumed instantly. We should have laws against malicious attack though...

-Tzale

An open network is irrelevant. His rights to free speech ends when his actions infringe on me.

He can go practice his "speech" elsewhere.

I absolutely has a right to not have my services stolen. My garden hose isn't locked up, so by your logic anyone should be able to take the end and water their lawn. I have electrical outlets outside my house too that are "open". Should anyone be able to plug in and steal electricity from me?

There is no 100% free speech. We have "Do not call", decency standards, disturbing the peace laws...there are plenty of president proclaiming that free speech doesn't trump all others.

My email box is not a public resource for others to consume at will. It's for MY use.

If spammers want to send advertising, let them buy commercial time on television or radio or stand on a public street corner.

How are your resources stolen? You put your resources on a public network, thus you should expect to receive e-mails!

We're reaching a point of diffraction in this thread where everyone is throwing around bullshit just because they disagree with my controversial, but legally strict stance on the issue.

If your e-mail box is ONLY for your use, how do you plan on stopping me from sending an e-mail to you right now (if I knew your address), telling you that the sky is blue? Would I be violating your rights? I think not. If you are on a public network, you better expect to have your "resources" consumed.

-Tzale

Public network is irrelevant. My house is on a public street, my water hose is in my front yard not locked up. So what?

Just because my private property is in a position to be consumed by leeches, doesn't give them the right to use it.

I guess by your logic your neighbor with an open WAP should be open to having his services stolen as well under the guise, "he should have encrypted it".

My ISP provides me with a monthly cap. Every KB I consume with SPAM is a KB I'm paying for. My ISP charges me monthly fees based on how much it costs them in part to run their email servers. Processing spam consumes their resources when in turn runs my rates up.

And WRONG. My ISP is a PRIVATE company. My email box is NOT a public resource to be used.

So because I have a garden hose in my front yard I should expect to have water stolen? If I leave a bike in my yard I should expect to have it "borrowed"?

Insane. What happened to respecting people's individual property rights?

Spammers are free to speak all they want so long as they don't use my property to do so.

Wow...

Your water hose in your front yard is on private property. So that argument is totally null and void.

Your e-mail inbox is placed on a public network with NO security, THUS it is put into an "abstract" public place.... That is the problem...

And you would be right... I happen to believe that open WAPs should be the responsibility of the owner. Usually when it comes to law concerning "theft of service," you're going to get vocal proponents on each side. This is an ongoing debate. Currently, most judges interpret the law under my belief system.

-Tzale

The mail servers I use are private property located within private property.

Just because my private property is connected by a semi-public "highway" doesn't give anyone the right to use my private property.

Your waterhose is on private property... Your bike is on private property. If someone steals it, they are guilty of theft.

You PURCHASED a PUBLIC resource.... Sorry, but E-MAIL is a PUBLIC resource... You entered into an agreement with your ISP for x bandwidth for x money.... If you don't want to take the risk of having someone "abuse" your resources, then don't sign up for the service! If you're going to be this anal about your inbox not being a "public resource" then I highly recommend you setup your own private e-mail system.

And I'm going to reaffirm for the record that I don't support spammers.

It doesn't matter what it was "designed for." Unintended consequences abound all around.I have a good clue what the Constitution stands for. We just disagree on what it stands for.

Mark

I do when I pay for my mailbox.

Mark

So I get it.

If I don't lock up my car well enough then it's my fault if it gets stolen. If I don't want my water stolen I should take in my hose.

Nice.

You are morally bankrupt.

Correction:

Your server is on private property 100%, but a portion of the processes running on it are (by your choosing) a part of an abstract public location which allows ANYONE to come along and leave a message.. Instead of occupying physical space, it occupies memory on your server. If one of those spammers were to hack your server, then YES they would be committing a crime since that portion was not part of the abstract public location.

-Tzale

I can't debate with people who don't want to even recognize the logic behind my argument which is based upon sound legal reasoning.

There is a reason why lawyers are some of the most hated people in this nation. This is why.

-Tzale

Everything about that email server is private property.