I would not presume to offer a legal opinion but have practical experience in the trenches fighting fax-spam with limited success. This is especially annoying we are supposed to be protected from fax-spam by state and federal law. This leads me to believe that even if anti-spam laws were national and even if most spammers weren't based overseas, creating jurisdictional impossibilities, I think we would have similar problems as we do with the Federal anti-fax spam law; the TCPA of '93. Please note that as "It shall be unlawful for any person within the United States" (C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine;" "A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State -" "(B) an action to recover for actual monetary loss from such a violation, or to receive up to $500 in damages for each such violation, whichever is greater," In our practical experience we send a request to cease to every fax spammer... but... They most often fail to provide identification in their unlawful consumption of our toner and paper. (Surprisingly this notice reduced incoming fax spams from 30/day to 2/week over a self-indulgent labor intensive grind of 4 months) The customer of this service is also liable and we notify them as well but we are not in the business of pursuing legal action. This means that even in the extreme case of "fax.com" sending a fax to every one of the 100 numbers, in one of the three series of phone numbers, we have, punishing our receptionist mercilessly, with a whiney solicitation seeking lie about 'the children' we really can't take action. Legal representation costs alot more then the unlikely result of a worthless $50,000 judgement against an assetless criminal. The State of Oregon is toothless because they allow the first intrusion, will only take action against an in-state fax spammer and/or advertiser and their idea of 'bringing down the hammer' is to send them... yes... a letter. This of course presumes you can identify the fax spammer or the advertiser and we've found it's surprisingly easy to hide behind an 800 number. So, even if they made spam illegal, you would run into this same issue of $500/incident seeming draconian but in practical terms being insufficient to deter or punish and of course Sen. Byrd would probably lobby to make it 'opt-out'. -----Original Message----- From: Kuo, Jimmy [mailto:Jimmy_Kuo@private] Sent: Monday, October 21, 2002 10:19 PM To: 'crime@private' Subject: RE: CRIME Just Passing This Along As much as I would love for this to be held after appeal, I think there's no way this will be upheld. As there was just another message posted here about jurisdictions, I'd have to agree about Federal jurisdictions on email. If an email is sent from Oregon, *supposedly to someone in Washington*, there's no guarantee that the email ever existed in Washington. Suppose the Washingtonian read his email on an AOL server residing in Maryland? Apart from the wires being FCC jurisdiction, no one can count the number of emails out of the 20,000 that actually resided physically in Washington. How many email messages is required to qualify under the Washington law as "spam"? Jimmy -----Original Message----- From: Soren.J.Winslow@private [mailto:Soren.J.Winslow@private] Sent: Monday, October 21, 2002 9:04 AM To: crime@private Subject: CRIME Just Passing This Along I don't know if this got passed along or not, but I thought it would be good to share...... Oregon Man Fined For Spam E-Mails http://story.news.yahoo.com/news?tmpl=story&ncid=528&e=7&cid=528&u=/ap/20021 019/ap_on_hi_te/spam_lawsuit By PAUL QUEARY, Associated Press Writer SEATTLE (AP) - An Oregon man was ordered Friday to pay nearly $100,000 in the first case brought under Washington's tough law against "spam" e-mails. Attorney General Christine Gregoire's office estimates that Jason Heckel, 28, of Salem, sent as many as 20,000 unsolicited e-mails to Washington residents in 1998, trying to sell a $39.95 booklet called "How to Profit from the Internet." The case was the first brought after the Legislature banned commercial e-mail with misleading information in the subject line, invalid reply addresses or disguised paths of transmission. Judge Douglass North ordered Heckel to pay a $2,000 fine and more than $94,000 in legal fees. Heckel didn't appear in court. In a written statement he said he never intended to break the law, and that he made only about $680 from book sales. Heckel's lawyer Dale Crandall said he plans to appeal, and argued that state anti-spam laws violate the U.S. Constitution's protection of interstate commerce. "It would create a patchwork of laws that would be impossible to keep up with," Crandall said. Gary Gardner, executive director of the Washington Association of Internet Service Providers, one of the anti-spam law's backers, said he hoped the fine is the beginning of a new push to enforce the law. "Our goal was never to make any money on this stuff," Gardner said. "It's to put these people out of business." _____________ This e-mail transmission and any attachments to it are intended solely for the use of the individual or entity to whom it is addressed and may contain confidential and privileged information. If you are not the intended recipient, your use, forwarding, printing, storing, disseminating, distribution, or copying of this communication is prohibited. If you received this communication in error, please notify the sender immediately by replying to this message and delete it from your computer.
This archive was generated by hypermail 2b30 : Tue Oct 22 2002 - 08:36:59 PDT