[Politech] Offing spammers: More and more laws, or enforcement of existing ones? [sp]

From: Declan McCullagh (declan@private)
Date: Tue May 24 2005 - 19:38:25 PDT

Previous Politech message:

-------- Original Message --------
Subject: Re: [Politech] More on spam elimination by arresting a mere 200 
bottom-feeders [sp]
Date: Sat, 21 May 2005 13:54:42 -0600
From: Eric Goldman <egoldman@private>
Reply-To: Eric Goldman <egoldman@private>
To: Declan McCullagh <declan@private>
References: <428DF7ED.2040603@private>

Sorry, I missed this earlier.  We don't need new laws to nail the top
200 spammers.  There are plenty of laws that already cover their
behavior.  Iif we agree with Brad's assessment of the problem, what we
need is better enforcement of the existing laws, to the extent that's
possible against spammers located worldwide and trying to cover their
tracks.  Eric.
Eric Goldman
Marquette University Law School
Personal website: http://www.ericgoldman.org
Blogs: http://blog.ericgoldman.org and http://blog.ericgoldman.org/personal/

-------- Original Message --------
Subject: Re: [Politech] More on spam elimination by arresting a mere 200 
bottom-feeders [sp]
Date: Tue, 24 May 2005 19:56:55 +0100
From: David Cantrell <david@private>
To: Declan McCullagh <declan@private>
References: <428DF7ED.2040603@private>

Those proposing new laws to deal with spam would do well to look through
their mail archives, where they will note that with VERY few exceptions
every single spam is already breaking at least one law.  So it being
illegal appears not to have much effect.  The existing laws would be
more effective if they were enforced.  If that proves to not be
effective enough, then, and only then, should more laws be considered.

David Cantrell | top google result for "internet beard fetish club"

     It requires zero configuration once you're configured properly
         -- pudge, talking about Rendezvous (zeroconf) in Jagwyre

-------- Original Message --------
Subject: Re: [Politech] More on spam elimination by arresting a mere 200 
bottom-feeders [sp]
Date: Sat, 21 May 2005 10:45:17 -0700
From: James J. Lippard <lippard@private>
Organization: Legion of Dynamic Discord
To: Declan McCullagh <declan@private>
References: <428DF7ED.2040603@private>

On Fri, May 20, 2005 at 10:45:01AM -0400, Declan McCullagh wrote:
 > Subject: Re: [Politech] To eliminate spam, arrest 200 people: a proposal
 > [sp]
 > Date: Fri, 20 May 2005 09:23:32 -0400
 > From: James M. Ray <jray@private>
 > To: Declan McCullagh <declan@private>
 > References: <428D55DB.8010505@private>
 > >[In general I like Brad's ideas on spam, but I'm not so sure about this
 > >one. It's difficult to draft "only 200" legislation. Statutory language
 > >for critique, anyone?
 > ...
 > I don't have a critique, but maybe -- just maybe -- that top-twenty are
 > already breaking a law that's on the books (the law bookshelves I used
 > to take care of groaned under the weight of state and federal law -- I
 > saw HUGE tomes grow ever-bigger!). In fact, they might even want to
 > ignore a few victimless crime laws (which are also on the books, but I
 > guess it's more lucrative to catch druggies if you can steal all the 
 > they own) in pursuit of the top-20. I'll bet, if someone paid me, I could
 > find some sort of law broken by most-all of the top 20, and perhaps a
 > very public arrest/stopping of those would affect the other 180 or so.
 > JMR

JMR is correct--many (most?) of the ROKSO (http://www.spamhaus.org)
top 200 ARE already in violation of existing laws, including CAN-SPAM
and state and federal computer crime laws.  They defraud ISPs, they
pay virus writers, they pay to have end user systems compromised and
to use them as proxies to send their spam through.  These are all
actions for which the violators can and should be prosecuted.

Law enforcement and prosecutors just need to do the appropriate
investigation and prosecution using the existing laws, rather than
simply leaving it to Microsoft, AOL, and Earthlink to go after them
with civil actions which they may never be able to collect on.  (Some
state AGs--e.g., in Virginia and New York--have gone after major
spammers with criminal prosecutions after civil judgments are
awarded, such as Spitzer going after Howard Carmack after Earthlink
nailed him.)

A few of the ROKSO 200 have been busted of late, including Christopher
William Smith (Rizler) who was raided by the FBI last week
(http://wcco.com/health/local_story_133105651.html).  It looks like he
was targeted for running an online pharmacy, though, not because of
his spam operations.  The Texas AG is going after Ryan Pitylak and
Mark Trotter (in a civil action; Microsoft has also sued them).  The
U.S.P.S. is going after Daniel Mankani, Daniel Lin, Elaine Espinosa,
and Shao Yu (several of whom paid a $250,000 FTC fine in 2004 for
CAN-SPAM violations).

The FBI's "Operation Slam Spam" has collected massive quantities of
actionable intelligence on criminal spammers, but I have no idea why
there has been so little in the way of prosecutions.

The civil fines don't work because if they are small they get paid
and if they are huge, they just close up shop and reopen as a new
business (like Fax.com), or just ignore the judgments and hide their

The fact is that the people engaged in illegal spamming are just like
the people engaged in illegal telemarketing--they don't give a damn
about the law and are quite successful in avoiding any significant
consequences.  Unless there are some significant criminal
consequences--jail time--they'll continue.

Jim Lippard        lippard@private       http://www.discord.org/
GPG Key ID: 0xF8D42CFE

-------- Original Message --------
Subject: Re: [Politech] More on spam elimination by arresting a mere 200 
bottom-feeders [sp]
Date: Fri, 20 May 2005 20:00:38 +0000
From: Justin <justin-politech@private>
To: Declan McCullagh <declan@private>
CC: btm@private
References: <428DF7ED.2040603@private>

 > Date: Thu, 19 May 2005 23:04:47 -0700
 > From: Brad Templeton <btm@private>
 > Organization: http://www.templetons.com/brad
 > My suggestion is to set the bar fairly high to violate the law.  For
 > example, sending _millions_ of bulk mails to people who don't know you.

How do you prove in a court of law that a spammer sent millions of
messages?  First, you need access to those millions of messages; that
would require cooperation from Microsoft, Google, and/or Yahoo, or a
honeypot with lots of bandwidth.  Next, you have to trace each of those
millions of spam messages; that's infeasible.

What about criminalizing only spammers who receive or buy mailing lists
from third parties?  That would criminalize only spam from companies you
don't have prior dealings with.  The DMA would love that, which is a bad
thing, but it does target most of the top 200.

-------- Original Message --------
Subject: Re: [Politech] More on spam elimination by arresting a mere 200 
bottom-feeders [sp]
Date: Fri, 20 May 2005 13:11:46 -0700
From: Brad Templeton <btm@private>
Organization: http://www.templetons.com/brad
To: Declan McCullagh <declan@private>
CC: chris@private
References: <428DF7ED.2040603@private>

On Fri, May 20, 2005 at 10:45:01AM -0400, Declan McCullagh wrote:
 > Am I missing the obvious? When those 20 go offshore the evening 
before the
 > new law is enacted, what then?
 > Christopher Ambler

Nothing missed.  If they go offshore, that's going to be one way to
avoid any spam law.  Though being evicted from your homeland, even rich,
is no small punishment.

My point is not to promote anti-spam law.  I think most anti-spam laws
are unlikley to be effective, and worse, they will have collateral
damage in free speech and other areas.

My point instead was to say that, if most spam is indeed coming from
a small group -- and some antispammers I have spoken too recently feel
pretty certain of this -- there is no need to have battles among those
who want to stop spam over the fine tuning of a law.   The truth is
that no matter what law you draft, law enforcement's only going to have
time for the big boys anyway.   So draft a law that goes after only
the big boys, and funds the effort to enforce it on them.  A law
that nobody has a problem with and thus nobody (except the spammers)
wants to fight over.

Declan, you asked for possible statutory language.  I imagine a mix
of factors like sending many millions of spams, malicious intent,
significant dollars in revenues from the spams, those sorts of
things.  Things that are clearly true for the core spammers but
generate not a whiff of chill for anybody who isn't a spammer.

Now I personally feel that laws will have only limited value in
the fight against spam, in part because of jurisdiction as Chris suggests
and for many other reasons.   So I think the focus should be on
what nobody need fight about, and what can be the most effective.

Of course, if it's not true that most spam comes from this core
group, then getting them won't do so much, though it will obviously
do something and deter others from entering the upper echelons.

-------- Original Message --------
Subject: Re: [Politech] More on spam elimination by arresting a mere 200 
bottom-feeders [sp]
Date: Fri, 20 May 2005 17:45:02 -0400
From: Spencer Cheng <spencer@private>
To: Declan McCullagh <declan@private>
References: <428DF7ED.2040603@private>


It seems to me that going after the spammers, regardless of their
prolificacy, is attacking the symptom rather than the cause. Would it
not be better to track down the merchant paying the spammers and cut
off the money flow behind UCE?

Follow the money is always more productive than killing the messenger.

Spencer Cheng

-------- Original Message --------
Subject: Re: [Politech] More on spam elimination by arresting a mere 200 
bottom-feeders [sp]
Date: Fri, 20 May 2005 15:42:16 -0500
From: G.Waleed Kavalec <kavalec@private>
Reply-To: G.Waleed Kavalec <kavalec@private>
To: Declan McCullagh <declan@private>
References: <428DF7ED.2040603@private>


Am I the only person who thinks we need to apply economic pressure on
the big upstream players?

The major bandwidth vendors contract connectivity to smaller players,
some of whom knowingly sponsor spammers.  It is not rocket science to
figure out which ones.  It is not legal trailblazing to put
spam-sponsoring as NOT in the AUP in those contracts.

Today it is simply not in the best interest of major bandwidth vendors
to do this.

After all spam = bandwidth demand = dollars.

Somehow we as consumers have to MAKE it in their best interest to do this.

   G. Waleed Kavalec

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