[FYI the general definition of commercial speech is that which proposes a commercial transaction. --Declan] --- Subject: RE: [Politech] Another round on what Congress spam bill actually does[sp] Date: Wed, 3 Dec 2003 09:52:11 -0500 From: "Stegmaier, Gerard" <gstegmai@private> To: "Declan McCullagh" <declan@private>, <politech@private> Doesn't the notion of only criminalizing the anonymizing of commercial email constitute a content based restriction potentially subject to First Amendment concerns? I think this remains in some respects part of the challenge to the FTC's Do-Not-Call List in the Denver Federal District Court. While the speech rights of those who are unpopular and unsavory but who speak truthfully (e.g. not otherwise falsely or deceptively) may be speech we don't want to hear, it doesn't mean the Constitution shouldn't or doesn't afford it protection. --- Date: Wed, 03 Dec 2003 11:29:34 -0500 From: "James Maule" <Maule@private> To: <declan@private> Subject: Re: [Politech] Another round on what Congress spam bill actually does[sp] Again, this only applies to senders of commercial email. I read some case law after reading this to see if there were any precendents, and fortunately there aren't (at least that I could find in a quick 5 minute search). So, to recap, you can email to your heart's contect using an anonymizer as long as it isn't unsolicted commercial email. You can email anyone you want - you can even use false and misleading headers (if I read the CAN-SPAM legislation correctly) as long as your aren't selling a product. ================================== Well, true in the context of CAN-SPAM but there are other laws (and administrative regulations) making the use of false and misleading headers illegal (and in some instances a criminal violation) if the purpose is to commit a crime or to violate some other law. So long as the last sentence of the quoted paragraph isn't taken out of context... Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 maule@private http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist & Genealogist (www.maulefamily.com) --- To: Al Donaldson <al@private> cc: declan@private, gnu@private Subject: Re: [Politech] Another round on what Congress spam bill actually does [sp] In-reply-to: <200312032210.hB3MAWn32417@private> Date: Wed, 03 Dec 2003 16:41:29 -0800 From: John Gilmore <gnu@private> X-Spam-Checker-Version: SpamAssassin 2.60-the_well_m (1.212-2003-09-23-exp) on mh.well.com X-Spam-Status: No, hits=0.0 required=3.8 tests=none autolearn=no version=2.60-the_well_m X-Spam-Level: X-UIDL: 74106bbb0d4e7c2de831069a6fa2f94e > The real point of my note is to question whether S.877 will make > inbound spam filtering illegal for commercial companies. I believe that it will, at least for any return address used to send any "commercial email" (as defined), which must accept unsubscribe replies. But the bill doesn't give individuals any power to enforce the bill. And I challenge you to find a state attorney general, or a federal agency, or an ISP, who will sue to uphold the right of someone like me who is discriminated against as a "spammer" or "spam accomplice", to have their email replies not be rejected by anti-spam measures. I once contacted a federal agency to resolve an age discrimination complaint. I was about 22 years old at the time, and a company refused to hire me because I was under 25. The law merely said that age discrimination was illegal. But the agency said "That law was passed to help old people, not young people", and hung up on me. John --- Date: Thu, 04 Dec 2003 08:40:37 -0800 To: cjlamb@private From: Steve Schear <s.schear@private> Subject: Re: [Politech] Another round on what Congress spam bill actually does [sp] Cc: Declan McCullagh <declan@private>, gnu@private In-Reply-To: <6.0.0.22.2.20031126090736.030c16e8@private> >To: gnu@private >Cc: Declan McCullagh <declan@private> >Subject: Re: [Politech] Why Fed spam law is absolutely evil, by >John Gilmore [sp] >From: cjlamb@private >Date: Mon, 24 Nov 2003 09:33:25 -0500 > >John, >I normally agree with what you say, but in this case, I think you're way >out in left field: >I don't believe that anonimity has any place in the commercial realm. Do >you honestly want some anonymous person hawking their wares at you with no >way to track them down?? Do you feel that I should be able to hawk >whatever I want to whomever I want with no way for anyone to limit >me? Can you honestly defend the right of someone to blindly email any >information to anyone with no way to stop them? Actually, I think you're in left field and John is in right field :-) I can see a number of reasons why someone who is involved in commercial speech might not want to be identified. Suppose you're selling a gray market product or service: - a product to bypass copyright limitations on a product you've purchased. Something that Congress doesn't want you to have but many citizens feel allows them to exercise their fair use rights - a life saving medicine which has proven effective in Europe but the FDA hasn't yet endorsed >I'm proud to call myself a liberal and am very free speech oriented. I >don't even think the CAN-SPAM is a good bill. But, short of taxing email >(which I oppose - for now), I can't come up with a better alternative. Email postage may be a great idea, as long as it allows continued anonymity. I personally would have no problem paying recipients to read my email, if its the recipient and not the ISP that receives the postage value (if any). >Can you? According to a study by Brightmail, last year over 40% of all >email was spam. That was 2002 - I imagine in 2003, it's inched up to the >50% mark - at least in my inbox. For my web based mail clients, like >Hotmail, it's about 90 - 95%. I have lots of email accounts and the only ones which receive lots of spam are ones I've used carelessly [e.g., posted to places that are a spam magnet or used a common address prefix (e.g., john@private)]. I've had the account this mail was sent from (and its linked predecessor) for years, post frequently, and still only get 5-10 spam messages per day (I get more in my postal box). Spam may be a big bandwidth waster of ISPs but its not a personal bother. steve _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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