[Asterisk-biz] DIDX.org emails

[trixter aka Bret McDanel]

On Thu, 2005-11-17 at 12:23 -0800, Jeremy McNamara wrote:
> Hermann Wecke wrote:
> 
> > Don't threaten if you don't want to persue the case. Will look like a 
> > fool - or a kid.
> 
> 
> 
> Sometimes all it takes is the threat, but yes you should be ready to 
> take action if you threaten.

Technically speaking threatening legal action is extortion.  Why lawyers
and collection agencies are very clever in saying 'It is our legal right
to bring a suit' rather than 'we are gonna sue you'.  They imply they
will sue but never flat out say it.  

In US v Enmons however the supreme court ruled that to some point these
types of threats are legal, there is a burden of proof that is required
on the part of the one making the threat to show they didnt violate an
extortion statute, and that case was limited to the federal extortion
statute, most states dont have such a provision.

There are alternatives.  The CAN-SPAM act states that if someone
requests to be unsubscribed that must be honored.  Further 18 USC
1030(g) allows for civil suits for any violation of 1030.  1030(a)(5)
states that accessing a computer without authorization or exceeding
authorized access is a crime.  The request to be removed is putting the
other party on notice that they are no longer authorized to access that
network resource.  There are a few other elements in 1030 that must be
met, however post patriot act its WAY easier to be guilty of it.  And
with 1030 it can go either criminal (only the US Attys office can being
felony charges on the federal level) or civil (1030(g) specifically lets
any person file for a civil case if a violation occurs).  AOL has used
1030(g) to go after spammers as have a few other larger companies.  The
same logic can be applied to this situation.  In the AOL case it was
also found that a violation of the terms of service constitutes
exceeding authorized access, one of the 3 infringing acts in 1030(a)(5).


-- 
Trixter http://www.0xdecafbad.com     Bret McDanel
UK +44 870 340 4605   Germany +49 801 777 555 3402
US +1 360 207 0479 or +1 516 687 5200
FreeWorldDialup: 635378
http://www.sacaug.org/ Sacramento Asterisk Users Group
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