Saturday, October 18, 2003

Spam and Spam Laws


In "Spam and the Spamming Spammers Who Spam Us" at AndrewRaff.com,

posted October 15, 2003 , Andrew Raff notes that:

"Unlike 38 other states, New York has no specific anti-spam legislation."



If I may add to Raff's comment, I would opine that even those states that do have anti-spam legislation have not passed laws which are technically specific enough and hard enough on violators to be effective against spammers. See here.



SPAM IS A TECHNICAL LEGAL AND ECONOMIC PROBLEM



Spam is not simply a TECHNICAL problem, it is also a LEGAL and ECONOMIC problem. As a financial drain on the economic system, spam costs billions of dollars a year and yet, the spammers are not being correspondingly punished by our laws for the havoc they are wreaking and the economic costs they are engendering. Make the laws tough enough and the means to enforce those laws strict enough and much spam would stop immediately. Currently, spammers and the ISPs who profit from them get off with a wrist-slap and have no incentive to stop spamming. Strict laws targeting both spammers and ISPS with long jail terms and stiff fines would give them this incentive, fast.



SPAM IS A LEGISLATIVE PROBLEM



Although everyone complains about spammers, the root of the problem is more easily sought with the legislatures, who throughout the country and the world are NOT doing their jobs properly, and this includes the U.S. Congress particularly, although state legislatures have not been earning their paychecks either, at least not in the spam-prohibiting area.



In fact, there is no branch of the United States government which deserves greater criticism for their performance over the last decades than the legislative branch of the United States. To some degree, it would appear that the U.S. Congress has lost sight of its proper job.



THE U.S. CONGRESS IS NOT DOING ITS JOB



For reasons which are hard to fathom - the demonstrable fact is that Congress spends too much of its time trying to increase its own powers at the expense of the other branches of government, thereby neglecting its own work,

e.g.



1. by trying to curb the powers of the President:



We see this by the one-too-many recent Constitutional Amendments dealing with limitations on the Office of the President of the United States. Congress seems to have a recent modern "fixation complex" on the Presidency.



and,



2. by trying to bypass the Judiciary system through enactment of legislation which expressly provides for no judicial review of legislation, such as a bill recently introduced regarding the "Pledge of Allegiance" and other constitutional matters - as found here.



This long pattern of attempts by the Congress:



a. to usurp the tried-and-true system of separation of powers

and

b. to undermine the absolutely necessary system of checks and balances



- both of which have made America such a great and democratic country for more than 200 years -



are - at their foundation - very dangerous threats to the stability of the nation as a whole.



Such usurpations weaken the long-term structural substance of the United States for the sake of ephemeral short-term selfish political goals of one political party or the other. Just because some people do not like liberal (or as the case may be conservative) judges is no reason to destroy the legal fabric of the country. Similarly, just because some people oppose a President is no grounds to take away powers which that Office requires for its proper function. I would presume that legislators with a legal background would know this - or what are they taught in the law schools today?



We even see this attempted usurpation of executive powers in the language of recent Constitutional Amendments, which needlessly and one must say "ignorantly" - append the phrase "The Congress shall have the power to enforce this article by appropriate legislation", thus cluttering up the otherwise beautifully worded Constitution of the United States with unnecessary, tautological and selfish modern verbiage of the worst sort. The words used here - "power to enforce" - refer to a power which is the power of the Executive Branch - it is NOT the power of the Congress. Congress can always pass additional legislation to give the Executive greater enforcement powers, but Congress itself can enforce nothing. These clauses are useless boilerplate. Legislators are merely empowered to pass laws. They are law-"makers", excuse me, they SHOULD BE lawmakers. Do many good men at Capitol Hill seemingly not know what THEIR job is?



In the process of concentrating on the other two branches of government, and confusing their legislative role with the judicial and the executive branches, the U.S. Senate and the House of Representatives have - on the other hand - not been paying sufficient attention to the JOB at hand, for which they are being paid, and which is foreseen for the legislative branch by the U.S. Constitution.



THE RIGHTFUL JOB OF CONGRESS IS:



to pass viable legislation,

i.e.

1. to enact laws that accord with the U.S. Constitution (the determination of the constitutionality of laws is the JOB of the Judiciary), and, thereby to deal with problems which are increasingly surfacing in the modern world,



and,

2. to draft such laws as permit effective enforcement of such laws by the executive branch of government (enforcement of such laws is the JOB of the Executive).



MY RECOMMENDATION



So here is my recommendation to the men and women on Capitol Hill ....



When my spam box is empty of absolutely undesired and undesirable junk mail from various and sundry fraudulent agents and scams and pushers of all kinds - and I am getting something like 50 spam emails a day, with no end in sight - I will reconsider my opinion of the job being done in the Senate and the House. Currently, from my viewpoint as a citizen, I see nothing optimistic happening and I am faced with a mountain of spam email each day because - in part - the people in Congress are sitting on their you know whats. Until this spam ends, the Congress and the state legislatures - consisting mostly of lawyers - should put their legal noses to the grindstone and start doing what they are being paid to do, rather than trying to ruin the structural substance of the nation by trying to tell the President and the Courts what THEY are supposed to do. Frankly, I think the President and the Judiciary are doing a better job - by a mile - than the legislative branch, whose "main claim to fame seems to be the campaign" (with apologies to Longfellow).



It is time to put an end to spam.

The onus of carrying out that job is directly on the legislative branch of government, and nowhere else.

RFID - Radio Frequency Identification


Bag and Baggage - Denise Howell, appellate and intellectual property lawyer  : raises the prospect that many legal issues will be raised by RFID. RFID is an acronym for Radio Frequency Identification. RFID is a wireless technology which can be installed in a chip implanted e.g. in an organism or a commercial product and can thereafter be used for "tracking" that organism or product.



Denise writes e.g. that

"RFID usage and registries need to control and protect access. You may want to know immediately if your child's car seat has been recalled, but don't want others to know about the adult videos you rent."



There is no question that RFID will be implanted e.g. in cars to stop the stealing of vehicles. Wal-Mart is at the forefront of the application of this technology in beginning to use it for inventory management, but its further applications seem to have no limits.



RFID will be a substantial legal issue of the near future.

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