27th > December > 2004 Archive
InterviewInterview To Stanford, where the annual gathering of extropians, futurists and other techno optimists swarms each year - in a self-organizing, bottom-up style - to the annual Accelerating Change conference. Most of us look to the future with large doses of trepidation and grim resignation tempering the love - but not these people. They want to fling themselves into the future with the resounding smack of flies hitting a windshield.
OpinionOpinion I hate spam as much as the next person, but recent decisions by courts in Iowa and Virginia demonstrate how fear of technology (and justifiable annoyance) can force the legal system to impose fines and sentences that are grossly disproportionate to the harm caused by spammers. This is not to defend or justify spammers, whose actions are at best deceptive, almost always annoying, generally illegal and frequently criminal. But when people who send email are punished more harshly than those who commit war crimes in Rwanda, and are fined more than companies that destroy the environment, it's time to revisit our strategy. The Virginia case arose out of the actions of brother and sister team Jeremy Jaynes and Jessica DeGroot, who sent thousands of spam messages from July 11th to August 9th, 2004. They were convicted in the Commonwealth of Virginia (through which it is estimated 80 per cent of the world's Internet traffic flows - thank you, AOL). For the month's worth of spam, at about 10,000 per day, Jaynes was sentenced in November to nine years in jail which is more than the median state sentence for crimes like sexual assault, robbery, assault, theft, larceny - in fact, every crime except homicide. The nine year sentence is almost three times the median sentence for all criminal offenses nationally, which is 36 months. As serious a problem as spam is, I question whether nine years in the pokey is the appropriate sentence for a non-violent crime. A second issue for the Commonwealth of Virginia is its use of state law to impose sentence on activity that took place mostly outside of the Commonwealth. In a similar situation, a state circuit judge in Montgomery County, Maryland this month dismissed a civil lawsuit by a George Washington University law student against a New York spammer. The law student, Eirc Menhart, apparently set up a company and various email addresses and domains, including one called "Maryland-state-resident.com," for the purpose of attracting spam in order to take advantage of a Maryland law that permits state residents to sue spammers for up to $500 per spam received, and ISPs to sue for $1,000 per spam. When one Joseph Frevola allegedly sent Menhart a mess of emails, Menhart sued, claiming damages of $168,750. An interesting idea, to be sure, but circuit judge Duke G. Thompson found that the Maryland statute could not be applied to Frevola's conduct, especially where Meinhart lived in the District of Columbia (not Maryland) and his ISP was in Virginia. Thus, the court ruled, the spammer could not be hauled into a Maryland court to answer for email messages that may have never entered or had any effect on Maryland or its residents. One Billion Dollars More troubling, and unaddressed by the Maryland court, is the concept of statutory damages for automated emailing, which can lead to serious disparity between the severity of the activity and the fines imposed. Nowhere is that more that more clear than the recent case in Davenport, Iowa, where a state law entitles plaintiffs to compensation of $10 per spam message. An Iowa ISP sued 300 spammers in federal court for the amount of spam it received on a single day in 2000. The spammers did not show up, and the ISP, CIS Internet Services, obtained a default judgment against three spammy companies: $720m from AMP Dollar Savings of Mesa, Arizona; $360m from Cash Link Systems of Miami, Florida; and $140,000 from TEI Marketing of Florida. That totals to more than $1,000,000,000.00 - that's a Billion with a "B". To put that award in perspective, the Bhopal accident a decade ago cost Union Carbide about $470m - less than half the claimed "damages" suffered by a small Iowa ISP. There is no doubt that legislatures are trying to send a "strong message" to spammers. They are also trying to provide incentives to private litigants and ISPs to take spammers to court. But unsolicited commercial email, as annoying as it may be, is not the criminal equivalent of armed robbery, rape or negligent homicide. I don't question that spam causes real financial harm - a 2002 study by Ferris Research estimated the productivity losses due to spam in the U.S. at $8.9bn. But we need a common sense approach to compensation and punishment - one that fairly compensates individuals and ISPs for their true losses (as any tort system should) and punishes the perpetrators in a way proportionate to the severity of the offense, and not merely society's annoyance with it. Remember, what makes spam a crime is not its unsolicited nature or its volume, but rather the "fraudulent" flavor of the source address, IP address, or subject matter - all elements that, in the end, deceive virtually nobody. I don't know what an appropriate sentence would be, but nine years seems extreme. As for billion dollar damage awards, finding some spam in your inbox should not be the equivalent of winning the lottery - even if the spam promises you've won the lottery. Copyright © 2004, Mark D. Rasch, J.D., is a former head of the Justice Department's computer crime unit, and now serves as Senior Vice President and Chief Security Counsel at Solutionary Inc. Related stories US ISP wins $1bn damages from spammers Sibling spammers convicted Spam King dodges $20m big stick Spammer prosecutions waste time and money
The US government has secured the first conviction in its ambitious Operation Fastlink program designed to nab software pirates. The Iowa City Press-Citizen reported that Jathan Desir, 26, has admitted to distributing pirated software worth up to $200,000. The University of Iowa student is said to have had 13,000 software titles up for grabs. FBI agents searched his home earlier this year. The paper reported that Desir last week pleaded guilty to felony counts of copyright infringement and conspiracy. He could face up to 15 years in prison and will be sentenced in March of next year. FBI agents searched Desir's home on the same day - April 21 - that the US government launched a worldwide piracy strike as part of Operation Fastlink. The program is a joint venture between the FBI's Cyber Division and the Department of Justice's Computer Crimes and Intellectual Property Section. The Feds are looking for copyrighted music and movie traders, along with software pirates. The full account of the Desir bust can be found here. ® Related stories Witchfinder General targets NSA in Warez sweep? NASA hacker jailed for six months SuprNova.org ends, not with a bang but a whimper The BitTorrent P2P file-sharing system German police to take 16,000 warez buyers to court
Amazon.com congratulated itself for a banner holiday shopping season, saying more than 2.8m items were ordered on a single, record-breaking day. The online seller endured a series of glitches during the main holiday shopping stretch from the end of November to Christmas. Amazon's technology problems, however, did not stop it from moving record amounts of gear with consumer electronics and books driving sales. Amazon reckons that 99 per cent of orders met holiday shipping deadlines. "We are extremely grateful to our customers," said Amazon CEO Jeff Bezos. "On behalf of Amazon.com employees around the globe, we wish everyone happy holidays and best wishes for the coming year." Bezos' good cheer is a welcome break to the code of silence that has haunted Amazon during the holiday season. The company repeatedly denied that it was suffering from major technology glitches even though its site was unavailable to users for large periods of time and despite two weeks' worth of snafus on its seller marketplaces. Amazon could only muster the following canned comment to any reporter that asked about the problems: "We have very sophisticated complex systems that have problems from time to time." The Register, Reuters, and the New York Times all reported on the ongoing problems affecting Amazon, although the company refused to admit that any such problems existed. Amazon's secrecy raises some questions around its holiday happiness. In a statement, the retailer celebrated its single day ordering record but made no mention of how many orders were processed over the course of the entire holiday shopping period. Had an entire holiday record been set, you'd think Amazon would be more than happy to tell us about it. Many investors will be watching to see if Amazon's actual results come in as good as the company is making them out to seem. Some of the big sellers on Amazon included "America (the book): A Citizen's Guide to Democracy Inaction" by Jon Stewart; "Lord of the Rings: Return of the King Extended Edition;" "Seinfeld" Seasons 1-3; and Ugg boots. Less obvious top picks included nose hair trimmers, the Philips HeartStart Home Defibrillator and Clay Aiken's "Merry Christmas with Love." ® Related stories An interview with Santa's CIO eBay buys Rent.com for $415m Amazon UK rents DVDs The new world's A to Z, courtesy of Google Amazon's 'morning nightmare' lasts 11 days, and counting Flashing Xmas lights down DSL connection Amazon unavailable for holiday shopping madness
A US government official has called for an investigation into the problems that grounded over 1,000 US Airways and Comair flights last weekend. US Transportation Secretary Norman Mineta today ordered his department's Inspector General to probe the flight cancellations that left thousands of passengers stranded as they tried to travel on Christmas day. "As you know, problems experienced this past holiday weekend by two air carriers - US Airways and Comair - severely disrupted travel for tens of thousands of passengers," Mineta wrote in a memo to Inspector General Ken Mead. "The two disruptions were unrelated, but combined they had a serious impact on holiday air travel. While the worst of it may be over, I am deeply concerned about the impact on the system and the continued hardship being endured by so many consumers. Therefore, I believe that we must learn from the situations to preclude their recurrence." US Airways has blamed its problems on bad weather and "an usually high number of employees calling in sick," according to the Department of Transportation. The carrier cancelled flights, and failed to get thousands of bags to their destinations promptly. Comair has cited a major computer malfunction for its woes. It was unable to book crew flight assignments because of the computer shutdown. The carrier cancelled several days worth of flights in more than a hundred cities. "It is important that the Department and the traveling public understand what happened, why it happened, and whether the carriers properly planned for the holiday travel period and responded appropriately to consumer needs in the aftermath," Mineta said in a statement. Even today, Comair - a regional carrier for Delta - is still only at 60 percent capacity. It doesn't expect to have all flights up and running until Dec. 29. "Given the tremendous impact the winter weather had on our operation and infrastructure, we appreciate the continued understanding and patience of our customers whose travel plans were disrupted," the company said. In his memo, Mineta noted that US Airways and Comair were the only two major carriers to blame holiday travel problems on bad weather. ® Related stories Singapore Airlines plans in-flight live TV via Wi-Fi Did US terror measures down UK MPs? 'See through clothes' scanner gets outing at Heathrow