First Convicted Spammer Gets 9 Years

[handyguy]

If spamming was okay, why was this guy trying so much to hide his online source?

[adam]

proxyx99, my point is that there IS consistency on average but that there will never be consistency across the board. Everyone who gets drunk and kills someone will not get the same number of years in jail. If that were the case there would be no need for a sentencing stage, we'd just look up their crime in the book.

To cite 3 or 4 cases where guys got off light is ludicrous. For each of the above mentioned crimes I could easily find someone who had the book thrown at them, and then find all manner of cases in between.

On AVERAGE involuntary manslaughter cases result in much more jail time than spam related crimes. The fact that this particular guy got 9 years and a particular man who commited involuntary manslaughter only got 2, does not change this.

[menes777]

IMHO, I believe he got such a large sentence, because it was meant to be an example to show other spammers what will happen if they continue to do such illegal activities, and that the government is getting serious about cracking down on these people. It is in no way meant to be a fair comparison of the legal system.

[proxyx99]

Punishment by example is in direct opposition to main prinicples of criminal justice. If what you say were true then death penalty for first 10 convicted spammers would do a better job.

Adam, you know that "looking up in the book" is not an argument to be seriously taken. That is why you have trials to weigh all arguments.
Sentences like 9 years for spam show how draconian US criminal justice has become (3 srtikes in California another example). Every person has a right to a fair trial and fair punishment reflecting the nature of the crime commited. EVERY means also no "examples", no emotional involvment of judge and jury. "My courtroom" attitude of judges is another example of emotions leading to abuse. They often forget why they were appoinited, who and what they represent.
Law is not about avarages nor does it work based on averages but consistency in delivering justice. It is about each and every case. There is no place for any capricious excesses here.

[adam]

Punishment by example is in direct opposition to main prinicples of criminal justice.

Please do a little research into the history of criminal law. Punishment by example is one of the 4 justifications for criminal justice. Its called deterrence. This is a universal concept in all of the forms of criminal justice imposed everywhere in the world. And please stop this soapbox fiasco. The fact that our nation is comprised of smaller sovereign nations means that they each get some leeway in enforcing THEIR laws within their borders. The fact that sentences will vary as a result is not a sign of a flaw in the justice system. It is impossible to have the consistency you mention and still maintain our tiered system of government. Perhaps you'd be more comfortable in a dictatorship.

You argue that law "is about" ad hoc application to each individual case, but then you question why there is no universal consistency among all cases? That is pure contractiction.

While you go back and research these basic concepts of criminal justice, please also do a search on the laboratory of the state justification for sovereign nations. This may help you understand why inconsistency in the law is not a bad thing and why the law, as a whole, IS about averages. It ensures that law adapts to a changing society. BTW: that is also one of the fundamental concepts of any justice sytem.

Adam, you know that "looking up in the book" is not an argument to be seriously taken.

Then why are you advocating it? Do you not realize that this is your very argument?

As for the use of this case as an example, its not the sentence itself that serves the example. I seriously doubt the jurors had these ulterior motives. It is Virginia's legislators and the voting majority that are making the statement. They are the ones that chose to pass one of the strictest anti-spam laws in the country, one which makes malicious spamming a felony whereas in most other jurisdictions it is only a misdemeanor.

[proxyx99]

Please do a little research into the history of criminal law. Punishment by example is one of the 4 justifications for criminal justice. Its called deterrence.

I have addressed this in my previous post... (death penalty for spam, how about that?).
Deterrence cannot overshadow other aspects of the punishment like proportionality otherwise it becomes a mockery of justice, a way of lashing out by a selected few in the name of the society. This is not how you build trust in the system and achieve social goals. Ovelooked and ignored excesses of justice lead to more abuses and out of wack sentences. Deterrence is extreemely controvercial as it involves (in drastic cases like that) compromising rights of one individual in order to prevent future crimes. Punishment has other more important functions to fulfill. It has been widely discussed that more drastic the punishment is less likely the offender is to ever be able to come to terms with it. It closes the door to a successfull re-socialization. This time I would encourage you to go back to books.

With regard to averages it was my argument, not yours. I pointed that out to you as you seemed to suggest that since averages are more or less OK some special cases like this may be accepted "as is" as they do not affect the "averages".

You argue that law "is about" ad hoc application to each individual case, but then you question why there is no universal consistency among all cases? That is pure contractiction.

It is not, you deliberate each and every case without prejudice based on a collective experience and legislation to date.

This may help you understand why inconsistency in the law is not a bad thing and why the law, as a whole, IS about averages.

Inconsistency is always bad. The only instance it is good I can think of is to flag itself for future correction.

Back to the issue, I cannot imagine that this sentence for what was named above "an annoyance" holds under review.

[adam]

I have addressed this in my previous post...

Actually I believe your exact words were, "Punishment by example is in direct opposition to main prinicples of criminal justice."

And no amount of backtracking now will hide your clear ignorance of the law.

It is not, you deliberate each and every case without prejudice based on a collective experience and legislation to date.

You keep flip flopping your argument. All you are doing is arguing with yourself. And you do this in every thread. I would gladly discuss this issue all day with anyone but you. Feel free to get in the last word, I'm done.

Btw: talking like Yoda does not make you sound wise.

[proxyx99]

I have addressed this in my previous post...

Actually I believe your exact words were, "Punishment by example is in direct opposition to main prinicples of criminal justice."

And I stand by what I said. I explained that punishment has more functions to fulfill... and punishment by example is just that, it has nothing to do with delivering justice. Perhaps for 100% clartiy I should have said "...purely (solely) by example". Seemed unnecessary...

You keep flip flopping your argument. All you are doing is arguing with yourself. And you do this everytime a legal issue comes up. I would gladly discuss this issue all day with anyone but you. .

I know, it's tough... Can't make it black or white. Also can't agree with your position often expressed in this as well as other threads that it's OK, this is how the system works... The system is sick and you know it (or everyone but you).

I advocated for consistency whereas you said:

The US has a jury system, so naturally sentences are going to be all over the map

And again...

Rippermac like I just said, we have a justice system that allows varied sentences. Naturally you are going to get a wide variety. If you insist on finding consistency across the board then your definition of justice is unworkable.

I argued for consistency which you dismissed as impossible ("unworkable").
I have an issue with US justice system often proudly proclaimed in the media as "the best in the world" (what a joke!) producing a poo poo like the spammer sentence and you coming here to say "it's fine people...".
Consistency will produce predictable averages but averages are not telling much about consitency "across the board" as you put it. Averages may and often do cover up poo poo's like the above. In that sense I'm in opposition to your point of view. Benchmarking "by averages" tells you little about consistency and may hide huge injustice done like in this case.
That is what I've been saying. Call it "flip-flopping" but in my view US courts tend to react (and serve) more to political or social climate changes then in any european country. And no "averages" are going to cover it up.

[vrieze42]

Just a thought here for those who think that prison time is to much. Do you also think that spreading spam or virus' are an expression of their right to free speech? The way I see it we have only two choices. Either deal harshly with criminal behavior or we all have to pay for the right to e-mail. I for one don't want to be penalized for their actions. Besides, giving them a slap on the wrist and a fine will only allow them to go right back to what they have been doing. I for one am tired of crime paying off for dirtbags.

[JohnnyCNote]

Spam and viruses are not the same thing....

[Supreme2k]

Just a thought here for those who think that prison time is to much. Do you also think that spreading spam (agree with JCN) is an expression of their right to free speech?

It can't really be considered "Free Speech", since it requires unwarranted solicitation. Electronic "trespassing", if you will.

The way I see it we have only two choices. Either deal harshly with criminal behavior or we all have to pay for the right to e-mail.

But you have to define "harshly" (cruel and unusual?) and "criminal" (dangerous? costly?)

I for one don't want to be penalized for their actions. Besides, giving them a slap on the wrist and a fine will only allow them to go right back to what they have been doing.

Restitution is neither a fine, nor a slap on the wrist. If restitution were implemented correctly, society (and the victims) could be paid back, and then some.

I would be a big advocate of a system like vitualis suggested (if someone else implemented it )

[adam]

Very rarely is spam done for anything other than commercial purposes, therefore it is by definition considered "commercial speech" and afforded very little free speech protection. Courts apply "intermediate scrutiny" to regulation of this type of speech. In other words, states have alot of latitude in regulating it.

Unsoliciated mass e-mails can certainly constitute protected free speech, but generally not if its done for commercial purposes.

[QuaiBoy]

Want to stop spam? Figure out who is buying from these idiots and put a stop to THEM. There wouldn't be spam if there wasn't money in it. Stop buying from the damn emails and bye-bye spam.

Legislation is not the answer. It takes far too long to put a law in place. Technology is always on the move, making any legislation obsolete before it's even brought to discussion. In addition, there will always be political motivations (or otherwise) getting in the way.

The reason "spammer" is included in the headlines is to discourage people from doing it. This guy was committing fraud, plain and simple. That's why he got nine years. Like most other white-collar crimes, he should be paying back those he hurt... not rotting in a jail cell. Or perhaps a combination of the two.

All IMO,
-Evan-

[AlecWest]

That of course does not apply to systems that sentence PPL to 6 consecutive life sentences for example (what a bizarre logic is this, (like kill the guy by hanging him 3 times, one after another, so that sonofabitch gets it finally...))

Actually, consecutive life sentences make sense. Each charge against the criminal is "one count." If, by means of a legal technicality, a lawyer can get one of those counts judged invalid, convictions on the remaining counts keep the criminal behind bars. This forces defense attorneys to argue all counts ... and find something inappropriate with all charges to get a client out of jail scot-free.

[Nilfennasion]

First of all, before this case, SPAMmers used to make it a habit to claim that their solicitations were legal under one judgement or another so long as they did certain things (obviously not true). Then they used to wave the lack of convicted or fined SPAMmers in our faces and tell us there was nothing we could do to them. A man being sentenced to serve nine years in prison because he stole enough from legitimate Internet users and businesses to buy a fleet of Rolls Royces is exactly the kind of slap in the face the SPAMmer community deserves. Can you picture it if a grocery thief was allowed to get away scot-free for as long as many SPAMmers have?

Second, the First Amendment argument has been brought up by SPAMmers before, and it has been shot down in flames just as many times. Nowhere in the First Amendment, or indeed anywhere in the US Constitution as far as I can recall, does it say that anyone has a right to force citizens to hear their message. SPAM is the electronic equivalent of sending someone a five kilo parcel from across the world, postage due, with no option of refusal. It is an attempt to circumvent the right of choice on the part of the legitimate user, and therefore should be considered illegal. I'm by no means a legal expert, but it is just plain common sense, when you consider all the facts, to see that brazen thieves like this should be made an example of. In the late 1980s, they said that by this time, everyone would be receiving their post and doing most of their shopping exclusively online. SPAM is one of the most major reasons why that hasn't happened.

[adam]

The first amendment doesn't give anyone the right to do anything, rather it prevents the government from doing certain things, in this case limiting speech.

And like I said, spam as well as any other form of mailing, is definitely protected by the 1st amendment's guarantee of free speech, it is just afforded less protection than other forms of speech because it is of a commercial nature. There are only a few types of speech that are not protected by the first amendment (fighting words and legal obscenity) and spam doesn't necessarily qualify generally, though obviously spam often does contain obscene material.

Free speech involves a balancing of the government's interest versus the speaker. Even if the interests are extremely stacked in favor of the government, the speech is still afforded some protection. This is the case with spam.

[Nilfennasion]

The point I was trying to make was that SPAM does not fall under the protection of free speech because it generally does not allow the option of refusing to hear it. Even if all you do is delete it, it still costs you enough money that receiving it in mass amounts hurts. Let's not also forget that other forms of advertising such as paper junk mail and television force the people paying for it to consider their returns on investment.

Email lists that send out messages to a list of people who expressly made their desire to receive them known is and should be protected. But then, they have also more or less been destroyed by SPAM. As they say in commercials about pollution or corruption here, it costs more than you think.

I think there also ought to be a penalty for recklessly sending pornographic SPAM to addresses in use by children.

[adam]

That is not the test for free speech protection. I'm sorry but it is clearly "commercial speech" which is indeed afforded first amendment free speech protection. As of yet free speech has not provided the relief that spammers have wanted. Since they only regulate commercial speech, anti-spam statutes are only subjected to intermediate scrutiny which largely defers to the government. This doesn't mean that spam doesn't have free speech protection, it just means that the government has broad authority to regulate this form of speech. Either take my word for it or research the issue. No US court has ever ruled that spam is an unprotected form of speech.

There are 4 forms of unprotected speech.
1) words that incite lawlessness
2) legal obscenity
3) Fighting words
4) Offensive speech in limited circumstances

Unless the content of the email contains any of these forms of speech, then the spam is still afforded free speech protection. Having a free speech argument "shot down in court", as has been done with spam in the past, does not mean your speech is not protected it just means that the government's interests in regulating that particular form of speech outweighed your interests.

[Nilfennasion]

My bad. I keep misreading the results of rulings.

But there is already specific legislation in both Europe and Australia that basically says SPAM is illegal, and legally equivalent to theft. While Australia theoretically has similar laws garanteeing the freedom of speech, no challenge to this legal precedent has been successful. Partly because business, and therefore government, interests have been hurt too badly by SPAM. But mostly because government employees use email, too, and they have seen the effects that unrestricted SPAM can have.

I've never heard anyone agree with the idea that it is legal to force another person to hear a specific message.

[AlecWest]

SPAM is the electronic equivalent of sending someone a five kilo parcel from across the world, postage due, with no option of refusal.

Yes, and that's an important point. Every piece of mail you receive, from bulk mail to letters from old girlfriends, assigns you as the recipient with a right ... to write REFUSED on it and give it back to the mailman unopened and unread. True, you can delete SPAM once you recognize it as such. But the bandwidth used by SPAM costs money ... and those costs are passed on to every Internet user in the form of higher access fees. So, with SPAM, the damage ($$) is already done before you even notice it in your inbox.

Brief threadjack on bulk mail. The sheer volume of bulk mail actually helps subsidize the prices we pay to mail a first-class letter. This is because, to get the cheaper rates, mailers have to "prep" their outgoing mail in such a way that it complies with machine requirements ... requiring almost no handling by a person other than the mailman. And FWIW, the recent "rate hike" request made by the U.S. Postal Service was not needed. They even said so. The only reason they asked for it is because a silly old law still on the books requires them to keep a certain amount of money in escrow ... and it's likely that this law will be struck down and that the rate increase will never happen.

One more thing ... only for people with wood-burning fireplaces or woodstoves. Try to get yourself on every possible bulk mail list. When the bulk mail arrives, open it up and check to see if the offer has a "bill me later" option and a prepaid return envelope. If it does, toss it into one box. Toss other bulk mail into another box. When wintertime comes, you'll have an emergency supply of fuel to feed your fireplace ... cutting down heating costs to those who would otherwise buy wood to burn. Then (evil grin), have some fun.

Empty out the box of bulk mail with "bill me later" options and prepaid return envelopes. Put them in a stack. For each offer, enter a made-up name at the address of the next bulk mailer in the stack, check "bill me later," and seal up the prepaid envelope ... moving on to the next offer in the stack and doing likewise until you've finished with the stack. Then, mail out all the prepaid envelopes ... guaranteeing that bulk mailers will be sending products (and later, bills) to each other.

[Nilfennasion]

It should also be noted that another favoured defense of SPAMmers like this guy is to claim that bulk email makes your email inbox cheaper. In reality, the exact opposite happens. As CAUBE.org.au puts it so well, SPAMmers are imposing their equivalent of a GST upon everyone who uses the Internet, and that GST is getting larger with time. Only by branding them as thieves and sending them to prison with others who steal massive amounts of valuable items can we hammer it through to them that we don't buy it.

But I just had to point that out, in case anyone reads the comparison with paper junk mail and confuses the issue by mistaking SPAM for being like paper junk mail. Which is also a favoured defence used by SPAMmers. You should see the bastards squirm when you point out the difference and basically say "get out of this one, you slimy cheat".

[adam]

I've never heard anyone agree with the idea that it is legal to force another person to hear a specific message.

That is not what I am saying, and again that is NOT the test for free speech protection.

Simply put, in the US if what you are expressing is defined as "speech" then it is not a matter of whether it is protected by the first amendment, it is only a question of how much protection it receives. I wholeheartedly agree with you that states should be able to regulate spam to the point of outright forbidding it, I am just clarifying that you can reach this conclusion without determining that spam has no free speech protection.

Even if spam is outlawed in every jurisdiction in the US, it is still afforded free speech protection. "Free speech" doesn't mean you are free to say it, or to force others to listen. It means the government has some restrictions on what it can do in limiting that speech. For instance, the government could maybe prohibit all unsolicited commercial e-mails but could not impose an unreasonable sentence of, life in prison for example.

[Nilfennasion]

Ahhhhhhhh okay, now it makes sense.

Not to be contrary, but I think life in prison would be very reasonable for some of these clowns.

[af895]

ROTFL!

That's deliciously evil!

I love it!

;p



[quote="AlecWest"]

...snipped...

One more thing ... only for people with wood-burning fireplaces or woodstoves. Try to get yourself on every possible bulk mail list. When the bulk mail arrives, open it up and check to see if the offer has a "bill me later" option and a prepaid return envelope. If it does, toss it into one box. Toss other bulk mail into another box. When wintertime comes, you'll have an emergency supply of fuel to feed your fireplace ... cutting down heating costs to those who would otherwise buy wood to burn. Then (evil grin), have some fun.

Empty out the box of bulk mail with "bill me later" options and prepaid return envelopes. Put them in a stack. For each offer, enter a made-up name at the address of the next bulk mailer in the stack, check "bill me later," and seal up the prepaid envelope ... moving on to the next offer in the stack and doing likewise until you've finished with the stack. Then, mail out all the prepaid envelopes ... guaranteeing that bulk mailers will be sending products (and later, bills) to each other. :lol:

[gadgetguy]

Empty out the box of bulk mail with "bill me later" options and prepaid return envelopes. Put them in a stack. For each offer, enter a made-up name at the address of the next bulk mailer in the stack, check "bill me later," and seal up the prepaid envelope ... moving on to the next offer in the stack and doing likewise until you've finished with the stack. Then, mail out all the prepaid envelopes ... guaranteeing that bulk mailers will be sending products (and later, bills) to each other.

[/quote]

This is a funny thought, but don't do it. It is mail fraud and while it's unlikely that you'd get caught and/or prosecuted, why risk it? Federal authorities take mail fraud very seriously.