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[P]
Texas Spam Bill: Who We Trying To Help Here?

By chipr in Op-Ed
Tue May 13, 2003 at 01:05:53 PM EST
Tags: Internet (all tags)
Internet

The Texas Legislature currently is considering a new Spam Law. House Bill 1282 has sailed through House Committee and is on the verge of being passed out by the Senate Business and Commerce Committee. This would be fine except for one thing: this law would help spammers more than it does their victims.


HB 1282 was introduced by Rep. McCall of Plano, TX. The bill has several key provisions. It outlaws header forgery. It requires that spammers place an ADV: subject label in their messages. It mandates spammers provide an opt-out address to stop the spam. It creates a private right of action, which means victims can go to small claims court and sue for damages.

The problem is the bill was written with the assistance of companies that have just as much interest in marketing as they do email services, such as AOL and Microsoft. Wherever they saw a provision that presented risk to their marketing operation, they watered it down or cut it out. In the end, they created significant protections for spammers while doing little for email recipients or service providers.

For instance, the bill provides what I call a 90-day "license to spam." Under the bill, the spam recipient has a right to request opt-out from further mailings. The bill, however, allows the spammer up to 90 days to process that request. That's not protecting email users, that's giving cover to ruthless spammers. Under this bill, spammers are allowed to harass their victims three months after they say, "Stop!" I predict spammers will setup shop, spam away, ignore opt-outs, and when the three months are over close the doors and transfer assets to a new company.

This, of course, is foolish. If the law is going to grant spammers a right to run opt-out operations in Texas, the least it can do is compel them to use an automated unsubscribe process. Federal law requires that telemarketers honor your "Do not call!" request immediately. Why shouldn't we demand the same of spammers?

In addition to foolish protections for spammers, the law creates significant barriers to discourage anybody from bringing suit against a spammer. Under the provisions of this bill, you can file suit against a spammer, haul them into court, prove your case, and win a judgment. The problem is the amount of damages you'll get to collect will be about ten bucks--less than your out-of-pocket expense for filing a small claims action.

As if laughable penalties weren't enough disincentive, the bill requires that you report your action against a spammer to the State Attorney General office. No other spam law in the nation puts up these sorts of bureaucratic barriers. But it gets better! If, in your excitement over collecting ten dollars from a spammer, you forget to file notice, you are now liable to the state for a $200 penalty.

This bill is a travesty and an insult to Internet users. If it passes, Texas could become the spam capital of our nation. Spammers will flock to our great state, hoping to avail themselves of these protections. I know Texas fancies itself as being good for business, but there are just some businesses we don't want.

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Poll
State-Level Spam Laws?
o Bad idea. 13%
o Should outlaw forgery or fraud. 10%
o Require subject labels and mandatory opt-out. 8%
o Opt-in only: prohibit unsolicited commercial email. 67%

Votes: 67
Results | Other Polls

Related Links
o House Bill 1282
o Business and Commerce Committee
o Rep. McCall
o Also by chipr


Display: Sort:
Texas Spam Bill: Who We Trying To Help Here? | 50 comments (30 topical, 20 editorial, 0 hidden)
Not considering anything (3.16 / 6) (#5)
by xah on Tue May 13, 2003 at 01:23:21 AM EST

The Texas Legislature currently is considering a new Spam Law.

No, the Texas Legislature currently does not have a quorum. Thus it is doing nothing. Press conference (Real Media).

won't affect this (4.33 / 3) (#6)
by chipr on Tue May 13, 2003 at 02:19:49 AM EST

It's the House that's shut down due to lack of quorum. The Senate continues to meet, and will be hearing this bill today (Tuesday). Of course, eventually this will have to go back to the House, but the walkout is only expected to last four days, at most.

[ Parent ]
like hell (none / 0) (#33)
by xah on Tue May 13, 2003 at 03:30:25 PM EST

From what I've read in newspapers, if the Dems stay away for four days there will be no quorum, and all the bills before the House will die. So, yes it will.

[ Parent ]
It's alive! (5.00 / 1) (#35)
by FoxFireX on Tue May 13, 2003 at 04:20:11 PM EST

The four day deadline (Thursday, May 15 this year) is for preliminary passage, from my understanding.  The way it works is the House passes a version, the Senate passes a version, they resolve their differences, then each chamber must pass the combined version.  The Thursday deadline means that come Friday, the House cannot have that first, or preliminary, passage.  (I don't believe this applies to bills first passed in the Senate and now coming over for consideration.)

Anyway, if you look at the actions for this bill (HB1282) on the Texas Legislative site linked to in the story, you'll see that on April 3, 2003, the House did indeed pass the spam bill, and referred it to the Senate.  This stands in contrast to HB3398, the congressional redistricting bill which has caused the Democratic quorum break.  That bill has not yet won preliminary passage, and if there is no quorum come Friday, cannot be considered further this session.  Which means Gov. Perry will just call a special session and start the whole thing over again.

[ Parent ]

I see now. Thanks! [n/t] (none / 0) (#42)
by xah on Tue May 13, 2003 at 06:35:50 PM EST



[ Parent ]
wait a second (none / 0) (#36)
by xah on Tue May 13, 2003 at 04:21:09 PM EST

If there is no quorum, many bills will die, but not all. Not sure about the spam bill.

[ Parent ]
corrections (none / 0) (#45)
by chipr on Tue May 13, 2003 at 07:57:04 PM EST

Two quick corrections. First, it was the Senate Business and Commerce Committee scheduled to hear the bill, not the entire Senate. My comment was unclear.

Second, they dismissed without calling up the bill. So, we'll try again next time, likely Thursday.

[ Parent ]

Damn... (1.66 / 6) (#8)
by yicky yacky on Tue May 13, 2003 at 03:16:22 AM EST

...from your title I thought you were talking about the cartoon character...


yicky yacky
**************
'The actual reasonable Britons are correct, you're being a cock.' - Hide The Hamster.
+1 (3.00 / 3) (#12)
by epimetheus on Tue May 13, 2003 at 07:07:54 AM EST

I agree with your criticisms, but a few thoughts.

1. Change "who" to "whom".

2. The 90 day provision refers to *removal* from mailing list. That doesn't necessarily mean that the company can continue to spam you; only that they dont have to remove you from the mailing list right away. This is a charitable reading, I admit, but the text is flexible enough to allow it. I agree that a more express and expedient provision should be included.

3. The $10 figure is probably less an incentive for you to sue and more of a disincentive for spammer to send msgs. Since spammers will send thousands of emails, that $10 figure adds up really quickly -- especially when a spammer becomes the target of a class action suit. If the per msg figure were increased, the actual damages might be absurd and unworkable.

In any case, I think you're right to complain about this. I don't think it's quite as evil as you suggest, but there are loopholes that could benefit the wrong party... Good call.

new cali law: $1000/message. (3.50 / 4) (#14)
by delmoi on Tue May 13, 2003 at 07:13:14 AM EST

that should be intresting.
--
"'argumentation' is not a word, idiot." -- thelizman
can they pay in shares? [n/t] (2.50 / 2) (#22)
by martingale on Tue May 13, 2003 at 10:49:05 AM EST



[ Parent ]
Solution (2.80 / 5) (#18)
by gazbo on Tue May 13, 2003 at 08:03:47 AM EST

Simply filter any mails with ADV: in the title. HTH.

-----
Topless, revealing, nude pics and vids of Zora Suleman! Upskirt and down blouse! Cleavage!
Hardcore ZORA SULEMAN pics!

With an aspirin any disease is cured? (3.00 / 3) (#20)
by gmuslera on Tue May 13, 2003 at 09:12:24 AM EST

if that kind of bill is used worldwide, you will filter any mail with ADV:, ok... from the first to the millonth of each day.

This kind of solution only makes the real problem worse, legalizing spam, and enabling that a lot more exist. But I agree that it could make filtering easier and (marginally) better than bayesian filtering.

[ Parent ]

At the very least... (3.50 / 2) (#32)
by Zerotime on Tue May 13, 2003 at 01:51:40 PM EST

...by doing that, I'll be able to tell which spam messages came from Texas!

[ Parent ]
"We are trying to" (2.50 / 2) (#29)
by wumpus on Tue May 13, 2003 at 01:19:19 PM EST

Whose the "we"? How much have "we" contributed to the Texas legislature? How much "access" does this "we" have?

Wumpus

we is whom? (4.83 / 6) (#30)
by chipr on Tue May 13, 2003 at 01:33:27 PM EST

The we that is working to fix this bill is EFF-Austin (among others...that's the group I represent). We clearly have little leverage or power. The only thing we've got going for ourselves right now is tech cred. That's typically not enough in the lobbying process, but this (spam) is something the legislators feel strongly about. I've visited the office of every member of this committee, and not a single one refused to sit down and review our list of concerns.

Look, I know it's fashionable to be oh-so-snarkily cynical about the policitcal process. If, however, we had more people on the ground working and fewer people sniping, we might be able to make some progress on these issues.

[ Parent ]

bullshit (2.71 / 7) (#31)
by trhurler on Tue May 13, 2003 at 01:38:11 PM EST

Ten dollars is about what you deserve. Unless you're living in the 80s, you certainly haven't been charged more than that for the spam you receive. Besides, since most people are charged NOTHING for the spam they receive(they're not paying by the gigabyte or whatever,) there's no good reason not to just set up a filter that blows away anything with ADV: subject lines and get over it. Should a spammer fail to use ADV: lines within Texas(if he's located in Texas, which is the real problem with a bill like this - you can't apply Texas law to some guy in India and expect him or his country to care,) I'm quite sure that notifying the attorney general would be more effective than suing him; businesses that deliberately break the law generally face penalties far beyond any simple lawsuit due to wide-ranging fraud and other bad practices statutes.

The truth is, that bill, were it enacted worldwide, would give me all I want - the ability to have a simple, efficient filter on all unsolicited commercial email. Most people almost certainly would agree, your ideologically motivated hatred notwithstanding. What they hate is sifting through spam - not the actual fact that it gets sent to them.

--
'God dammit, your posts make me hard.' --LilDebbie

penalty (3.50 / 2) (#34)
by chipr on Tue May 13, 2003 at 03:35:59 PM EST

You seem to suggest $10 is a generous amount. It really isn't. Let's say your time is worth $12/hr and it takes 10 seconds to process a spam message. That's $0.0333 right there, ignoring other costs (network usage, equipment and depreciation, etc.)

Typical complaint rate on spam is about 1-5 out of 1000 people. Let's say 1/200.

Effort to file a lawsuit in small claims court is well over a hundred times that for submiting an email abuse complaint. So, we'd expect a filing rate a hundredth of the complaint rate, or 1/20000.

So, for each person who actually bothers to file a small claims lawsuit, the damage done by the spammer exceeds $0.0333 x 20,000 = $666. This number far exceeds the $10 called for by this bill. It's even well beyond the $100 minimum I've proposed.

[ Parent ]

Um... (2.50 / 2) (#38)
by trhurler on Tue May 13, 2003 at 04:35:31 PM EST

Yeah, we BETTER exclude equipment and depreciation, since they don't change ONE BIT due to your receipt or lack thereof of spam. As for network usage, as I said, while some people pay by the gigabyte, you aren't one of them, and the people who are don't care what goes over the network, because they're not the end users. The few exceptions are huge companies, who probably are spamming others themselves.

Now, it actually takes nowhere near 10 seconds to process a spam message. Without any filtering, I can blow away about 20 of them every 30 seconds. Redo your figures, and you're going to find that the theoretical cost is an order of magnitude smaller than you claimed.

But, that's a MOOT POINT, because with the ADV tag, you can spend ten minutes ONCE to set up a filter that will result in you never seeing another spam message again. At your claimed rate that's a charge of two dollars. Even at MY claimed rate, that's not even twenty dollars, which is a lot less money than you're talking about, and it is a ONE TIME charge that could feasibly be said to be a reasonable step for you to take on your own time given the existence of a law like this. Of course, the law is only in Texas, which isn't good enough, but the terms seem fine to me.

--
'God dammit, your posts make me hard.' --LilDebbie

[ Parent ]
Fiber no grow on trees (4.83 / 6) (#40)
by xL on Tue May 13, 2003 at 05:46:33 PM EST

What you're forgetting, is that the fact that the end-user is not directly charged for bandwidth means in no way that bandwidth is suddenly free. ISPs pay hard currency for Big Fucking Routers to drive Big Fucking Datapipes so that the customers can keep up on their usenet pr0n and kazaa habits. They build and pay for Big Fucking Servers to handle in- and outbound email. Then they build and pay for Big Fucking Disk Cabinets to store all those mailspools on. And with the spamlevel rising to the S/N ratio of a phoneline to the darkest pits of hell, all those Big Fucking Everythings must be upgraded to Absolutely Huge Fucking Everythings.

This means bigger investments for service to the same customers, which means to operate at the same margins, price levels will be negatively affected. So in reality, consumers already arepaying for the privilege of receiving spam. And they will be paying more and more and more, one way or the other.

[ Parent ]

No... (2.00 / 3) (#41)
by trhurler on Tue May 13, 2003 at 06:17:08 PM EST

I'm not forgetting that. That is a world I work in every day, and I know how it functions. The problem is, you either don't or aren't being honest. Right now, most available fiber is unused. Something like 98% or so. Most telecomms and big ISPs have a surplus of routers and servers, and can't figure out what to do with all of it now that their sales aren't growing at 50% every quarter or some stupid rate like that.

Now, if spam really did become the majority of internet traffic, and if we weren't in a recovery period, that'd be a problem. But, the fact is, most spam contains no images or other big items(they're linked instead,) because the spammer wants you to go to his website, and wants to know if you view those images so he can figure out who you are, validate your email address for future mailings, and so on. Reality is, porn surfing probably consumes FAR more bandwidth than spam, to the point of making spam, internet gaming is probably comparable in scope, filesharing is MUCH bigger(and lots of the people using it aren't paying anyone ANYTHING because they use cafe terminals, library terminals, and so on,) and so spam just isn't a major issue for the financial side. In addition, most of the big companies actually make money on spam. They sell your email address, because they know that they can sell the lists for more money than the mail costs them to process. They may claim they don't, but they do. Maybe they only sell it to "partners." The partners, of course, pay a premium, but they sell to someone else, and eventually the list ends up sold to an address wholesaler.

Reality is, spam costs consumers essentially nothing except time, and is a moneymaker for the big businesses of the networking world. That's why it still exists. Why haven't you heard that before? Because it isn't good PR. That's why. If it were a real problem, they wouldn't just pass on higher charges - they'd ban spam from their networks and start taking spammers to court for fraudulent use of private property - because they own the networks! Even if their cases had no merit, they could force spammers out of business with expensive legal bullying. They don't. Why? BECAUSE THEY PROFIT ON SPAM, you nimrod.

--
'God dammit, your posts make me hard.' --LilDebbie

[ Parent ]
I think this is more a case of YMMV (4.00 / 1) (#43)
by xL on Tue May 13, 2003 at 06:38:02 PM EST

I've been at outfits where inbound spam was not a big problem. And I've been at outfits where it was. Usually the real deal there was that the email platform was at the brim of its scalability limits. In my experience, domains that exist longer tend to get more spam, too. Under those circumstances, spam is a serious assault on the revenue streams. Even if things are planned correctly, it can still mean that upgrading beceomes a necessity slightly earlier than anticipated, which may mean there is not the cashflow to really support a larger investment. If you're smarter and take this into account, it means you are putting the added volume from spam right into your business case, which ultimately means the price level you pick on is partially influenced by spam.

Also, the fact that there is shitloads of capacity and that connectivity is getting cheaper than a crack whore doesn't mean the spam isn't still impacting pricing. Without the spam, the bandwidth costs for the ISP still would be even cheaper. Add to this that fiber doesn't cover the whole story. This I already outlined in the previous post: Even if I come back on the premise that fiber perhaps sometimes could grow on trees, Fiberchannel RAID arrays most certainly do not. I have just checked this for a fact. Leaves, yes. Sexually active urban winged rats, yes. Shelves with blinkenlights, alas, no.

[ Parent ]

Totally different perspectives, too (4.50 / 2) (#44)
by xL on Tue May 13, 2003 at 06:51:41 PM EST

When you read ISP, I think you are reading $BIGUSISP probably defined as a US national ISP owned by one or another broadcasting giant. I can easily agree to your vision of their ulterior view on Spamonomics. Operating at their size, they are really mostly beyond caring. On the other hand, you have to wonder what even a bigass ISP with a legal team the size of the British government can do to stop a nigerian spammer from spewing his shit on their users using korean open relays. Of course, those US troops stationed near Korea may actually be AOL lawyers, although that may be the wrong thread.

Also, there are many cases of ISPs, even some of the Bigger Evil ones in the US, actually making the effort to soaking a spammer in litigation when they can make a genuine case. As efforts by the volunteer anti-spam groups have shown, this can be harder than it looks in lots of cases.

[ Parent ]

One cost you are ignoring (3.00 / 1) (#46)
by samiam on Wed May 14, 2003 at 12:53:27 AM EST

One cost that you are ignoring is the annoyance that the end user has when they get a spam. This is a direct cost to the ISP, because end-users do call up their ISPs and complain when they get a spam, especially when their kid gets a pornographic spam.

The only way ISPs can keep their customers happy is by making their best effort to filter spam. Which costs CPU cycles. I know one ISP that has to buy a new server because their current server is getting overloaded running SpamAssassin on every single message that is going down their pipe.

Now obviously, the Texas law would, in theory, make it trivial to filter, but, as you have already stated, this law will not make any significant change.

You also claim that spam takes far less bandwidth than file sharing; I would like to see some hard figures backing that claim up. I can tell you this month: AOL filters hundreds of million of spams every day. Assuming each spam is 500 bytes long, and assuming that they get 250 million spams each days, that is a terabit of bandwidth each day.

- Sam

[ Parent ]

Well (none / 0) (#48)
by trhurler on Wed May 14, 2003 at 11:52:01 AM EST

Obviously nobody has hard figures on either spam or file sharing, BUT think about this: virtually everyone who is involved in file sharing networks has many gigabytes of crap stuffed away. They buy new hard drives to store it all. Then they buy more. It is insane. Many of the tools that do this sort of thing will actually pull the same thing from multiple sources at one time. The files are each measured in megabytes or even gigabytes for bigger stuff, the estimate is that there are tens of millions of users worldwide, users tend to let these things run while they're not even around, and now I'm hearing rumors of tivo-like setups that will search for stuff that seems "like" your favorites as being a future file sharing improvement. Almost everyone with broadband is using it to pull and let others pull many gigabytes of crap.

The point is, if it isn't bigger than spam yet(and I think it probably is, all told,) it will be.

In any case, I agree that there is a cost of spam measured in annoyance, BUT, no Texas law, no matter how worded, could possibly fix that.

--
'God dammit, your posts make me hard.' --LilDebbie

[ Parent ]
Assumptions. (none / 0) (#47)
by Eivind on Wed May 14, 2003 at 03:41:02 AM EST

Why do you assume that all end-users don't care how much data goes over the line ? This is patently not true.

Everyone who has metered local-calls and uses a modem cares a great deal if it takes one minute or ten minutes to download their email. This is still the most common access-method in Europe

Many places offer cheaper, metered DSL. Here in Germany for example, the norm is DSL with a download-quota (and pay by the MB if you go over this) true flatrate is available, but costs more. If you are like me, basically only using the web, email and irc from home, doing all your downloading at the uni, then such a limited DSL (I have 5GB a month) is perfectly adequate.



[ Parent ]

The value of one missed personal email? (4.50 / 2) (#37)
by pla on Tue May 13, 2003 at 04:32:28 PM EST

Ten dollars is about what you deserve

I receive, on average, between fifty and two hundred spam emails per day (ironically enough, AFAIK, this volume resulted from me going through a few weeks where I opted out of every spam I received... before doing that, I only received ten to twenty per day).

My filters catch most of them, leaving perhaps a dozen per week that I need to actually look at.

However, despite using a whitelist as a post processing filter to prevent losing "real" email, I know that I have missed at least three non-spam emails in the past year (from the senders re-sending to me at a different address).

One of those came from my headhunter, before I added him to my whitelist.

Fortunately, the job he sent me didn't really appeal to me, but what if it had? In the absence of spam, I would never have missed his message, and may have taken a $60k/year job as a result.

The other two (that I know of) "only" consisted of personal messages. But what value do we put on those? If they actually "stole" even a simple personal letter sent through the US mail system, that would carry a fine of up to $250k per incident. Strikes have ended because local officials deemed them as "interfering with delivery of mail". So apparently we do not take the non-delivery of mail due to a third party's interference very lightly.

So does $10 seem too high, or too low? I would say, entirely as a practical matter, it seems far too low. Not because of the likely actual costs incurred, but because of the potential for huge loss.


The truth is, that bill, were it enacted worldwide, would give me all I want - the ability to have a simple, efficient filter on all unsolicited commercial email.

Now that, I will agree with. Simply having a one-line filter for "adv:" in the subject would save me an enormous amount of time, both personal and CPU-wise (my current filter takes around 3 seconds per message on a P-III/1Ghz). I would like to see more rigid penalties, just to deter the spammers from ignoring the law and paying the fines (gee, we've never seen that happen before...) in the tiny number of cases where people both complain and can prove where the spam came from.

In reality, though, such a bill will not exist worldwide anytime soon, possibly never. And without wordwide consistency of such a law, including relevant extradition treaties, spam will just keep moving to places with more friendly laws. For this one reason, I tend to favor the "spam vigilante" laws that encourage individuals to seek out spammers and shut them down on their own, possibly even receiving a reward for successes.


[ Parent ]
Heh (3.00 / 1) (#39)
by trhurler on Tue May 13, 2003 at 05:14:30 PM EST

Your whole complaint is basically the same as mine: the law won't be universal. And you know what? If the penalties were a trillion dollars a violation, as long as they only apply to people in Texas, it won't reduce the amount of spam you get ONE BIT. The problem is jurisdiction, not penalties.

--
'God dammit, your posts make me hard.' --LilDebbie

[ Parent ]
umm.. that won't work. (none / 0) (#50)
by johnmeacham on Fri May 16, 2003 at 06:51:10 AM EST

blowing away mail with ADV: will work for the mail that follows the law. however you don't want to file charges against them anyway. its the ones who DON'T use the ADV: and break the law that you care about bringing to court. $10 is not enough of a deterent for people breaking the law in the first place.

[ Parent ]
We have a trend.. (none / 0) (#49)
by MuteWinter on Thu May 15, 2003 at 07:11:41 PM EST

Everyones been jumping on the anti-spam law bandwagon lately. Partially related, my state recently passed a do-not-call list law.

I suspect while these laws may may offer immediate benefits, in the long run they won't help anyone other than the politicians who passed them, "Look I helped free the world of spam."

By making spam illegal, the motivating factors in innovation of even more obtrusive techniques will explode. Besides, it may simply just become more profitable for those who choose to break the law (drug war anyone?)

Spam costs big businesses big money in lost bandwidth. Getting the government to make spam illegal saves them money. So the cost will instead be diverted to the general public. Obviously the cost will be minimal, and spread out through the whole population, probably a penny each. I'd rather the big businesses risk money out of their own pockets trying to eradicate spam.


Texas Spam Bill: Who We Trying To Help Here? | 50 comments (30 topical, 20 editorial, 0 hidden)
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