Monday, January 12, 2004

Has the CAN-SPAM Act made things worse? - fat, fatter, fattest?

Has the CAN-SPAM Act made things worse? - fat, fatter, fattest?


Stephen's Web, a useful site with a blog reference tool - highly recommended - links to a January 9, 2004 article by Dinah Greek entitled "New laws will make spam worse", in which Dinah Greek reiterates her prediction that the U.S. CAN-SPAM Act - which works under the opt-out principle - will make things worse, not better, as far as the amount of spam is concerned, and points to recent statistics that spam has already increased and not decreased in 2004. In other words, our mailboxes will get fatter and fatter with unwanted e-mail - Spam in the fridge and Spam in the mailbox. [Note- In a previous posting, we were initially pleased that AOL in 2004 was marking most spam as [SPAM], which we thought was a step forward - but in fact, the number of e-mails so marked is now in fact increasing....]

The European Privacy and Communications Directive

Similarly ineffective appears to be The European Privacy and Communications Directive which works under the opt-in principle. Apparently, whether opt-in or opt-out, it appears to make no difference to the spammers.

The "Hampering" Courts

Not only is the effectiveness of legislative measures being questioned, but the courts are doing their share in making it hard to get at spammers legally, as demonstrated e.g. by a recent suit by AOL, a suit which was thrown out of court on the grounds that asserting jurisdiction in Virginia over the defendants in Florida would violate the defendants' due process rights because the sued "Florida computer technicians whose business maintained email systems and computer networks for customers [i.e. the big-time spammers]" ... "did [themselves] not actually direct electronic activity into Virginia, and did not intend specifically to engage in business in Virginia."

LawPundit has trouble with that decision as a matter of logic. Does this mean that those who would put up artillery on a State's borders - just for fun of course and without any malicious intent - would be immune from prosecution and only those physical persons who actually fired the weapons into an adjoining State would be the only ones over whom we could exercise interstate jurisdiction? Is this the ultimate result of the short-sighted and provincial gyrations of modern narrow-minded and apparently legally unsophisticated States' Rights advocates, whether in the legislatures or the courts?

Is it possible that our legislative and judiciary system is overtaxed with the issues of the digital age? Do individual legislators and judges have anywhere near the requisite information technology competence to deal with modern technological questions when these are brought to the vote or brought before the bench? What about out-dated judicial doctrines as such? Are old-fashioned concepts of jurisdiction completely out of place in dealing with the internet? These are the kinds of things that LawPundit would expect to be finding discussed through the leadership function of the US Supreme Court - but do we see any signs of that kind of leadership in the judiciary? or in Congress?

The Legal System is Behind the Times

The LawPundit view is that the legislative and judicial branches of government are simply out of step with the times. This applies particularly to the provincial State legislatures, populated with many local heroes wanting to run the show in their local regions, as in days of yore, BEFORE the United States became a powerful federalist nation under a strong central government. We see this in the apparent legislative, judicial and executive helplessness against spam, we see it in the false judicial application of patent laws to software, we see it in the partially hapless legislation and confused court decisions relating to the copying of music and file-sharing, and we see it in the antiquated handling of copyright issues. Rather than establishing certainty and order, which is one job of the legislative and judicial branches of government, we have on the contrary - as in the case of proliferating spam - a great deal of legal chaos and confusion.

The Absurdity of the Current Criminal Law System

Indeed, LawPundit is increasingly and greatly puzzled and estranged by the unfurling machinations of a legal system whereby a 68-year corporate executive - just recently - was put into PRISON for 15 months for not properly labeling the fat content of his donuts - while at the same time we are permitting hordes of fraudulent crooks and criminals and their accessories - scot-free - to daily fill our mail boxes with false, misleading and in fact even dangerous e-mails that are MUCH WORSE in their illicit nature than delicious donuts which are fatter than expected - and which, at least, are digestible. Much of what we receive in our spam e-mails is NOT digestible, by any means.

Curiously, the donut executive's greatest failing - which brought him into the jaws of the criminal law - was that his donuts "tasted too good" to some customers, who then began to doubt their low-fat content. The mistake that he made was in giving the public too much of what it wanted - for which he was punished. Did the punishment "fit" the crime? We do not think so. The key, of course - as the spammers have learned - is to stuff consumers full of what they do not want - and presto - not a hair on their heads will be touched by the government.

In any case, the American people and the youth of America are the fattest on this planet - not only by the bulges on their mailboxes but also by their physical being - but do not blame this "fattest title" on the one donut executive.

Rather, we must look to the culture (and its mirrored legal culture) for indications of where that culture should be changed and improved. This also applies to the United Kingdom.

Via Overlawyered via Armavirumque (Stefan Beck)

and initially Larry Willmore, we quote Willmore's thought page, quoting Theodore Dalrymple in the National Post through a link which is no longer operative (click the original link which takes one to the general network), so thank you Larry for this text:

"Thought du jour: obesity

[The common man] is, at heart, ... the good savage whose innate decency was subverted by social influences such as giant food companies. Left to his own devices, the denizen of hamburger restaurants would eat fresh carrots and brown rice, his natural choices. He wouldn't want the horrible muck provided by fast food chains and processed food companies.

This picture is of a world in which humanity as a whole is good, but is so innocent that it is diverted from the paths of righteousness by a few evilly disposed persons such as the directors of food companies. .... Alas, reality is less flattering to our self-esteem.

In Britain, the second fattest country in the world after the United States, about half of households do not have a dining table. Many young people never learn to eat in a social way: .... People eat when they feel so inclined, by finding whatever there happens to be in the fridge and by heating it up ....

Theodore Dalrymple, "The devil's food cake made me do it", National Post, 5 July 2003.

[Theodore Dalrymple is a British physician who works in an inner-city hospital.]"

Put another way, we have a donut executive in prison who - like the fabled Jesus - is basically serving time for OUR sins.

Now what I think would mark a good legal system would be if the spammers were forced to do time for THEIR sins, and be made to work incessantly during their prison terms on anti-spam software solutions, whereas the donut executive should be released from prison and be instructed to do nutritional community work until the end of his sentence.

That would fit with my concepts of justice. As things now stand, the legal world is topsy-turvy.

[UPDATE: Here is a nice somewhat more detailed posting by Dan Fingerman with comments on specific provisions of the CAN-SPAM Act.]

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