Sorbs.net

Sun Mar 27 23:18:48 UTC 2005

>  o could this be used as a dos and then become extortion?
>    has this actually happened, or is it just black heli?

It has happened, in a legal sense anyway. See Exactis V. MAPS.  One of
Exactis' claims was civil extortion.  (Claim 4 on complaint).  Exactis
also claimed that MAPS could block 40% of their email, an that this was a
denial of service and interference with communications in violation of
Colorado's electronic communication privacy act.  MAPS moved for dismissal
but was denied.  Exactis was granted a temporary restraining order (TRO).
This is significant, given the case was settled.  The standard for
granting such an order is that the stated case, if the asserted facts are
assumed true, must be able to win on the stated law. In other words, it
has state enough facts to fulfill the claimed statutory requirements.

To explain TROs, let me put it this way: Imagine you have a washing
machine where you have to put the right coins in the right slots to get it
work.  For the TRO, if they have all the right coins (assuming they are
real), for all the right slots in the law, (and they pay bond), they get
it.  The trial is where the judge checks to see that the coins are real.  
Getting a TRO is a strong indicator of the technical merits of their case.  
If the defendant can't show some of the asserted facts false, they will
almost certainly lose.

>  o the ts&cs would seem to indicate that the donation is
>    voluntary, and proportional to the spam generated.  e.g.,
>    if you generated no spam, no donation.  do i understand
>    this correctly?

Its "voluntary" except that the subscribers are misled as to the purposes
of the blacklist.  The abuse of by blacklist is not something subscribers
voluntarily agreed to.  No subscribers agreed to have their non-spam mail
intentionally blocked.

Demanding payment for "generated spam", in return for de-listing is pretty
plainly extortion. Here is the Colorado statute: (Caps from state page)

(1)  A PERSON COMMITS CRIMINAL EXTORTION IF:

        (a)  THE PERSON, WITHOUT LEGAL AUTHORITY AND WITH THE INTENT TO 
INDUCE ANOTHER PERSON AGAINST THAT OTHER PERSON'S WILL TO PERFORM AN ACT 
OR TO REFRAIN FROM PERFORMING A LAWFUL ACT, MAKES A SUBSTANTIAL THREAT TO 
CONFINE OR RESTRAIN, CAUSE ECONOMIC HARDSHIP OR BODILY INJURY TO, OR 
DAMAGE THE PROPERTY OR REPUTATION OF, THE THREATENED PERSON OR ANOTHER 
PERSON; AND

        (b)  THE PERSON THREATENS TO CAUSE THE RESULTS DESCRIBED IN 
PARAGRAPH (a) OF THIS SUBSECTION (1) BY:

        (I)  PERFORMING OR CAUSING AN UNLAWFUL ACT TO BE PERFORMED; OR

        (II)  INVOKING ACTION BY A THIRD PARTY, INCLUDING BUT NOT LIMITED 
TO, THE STATE OR ANY OF ITS POLITICAL SUBDIVISIONS, WHOSE INTERESTS ARE 
NOT SUBSTANTIALLY RELATED TO THE INTERESTS PURSUED BY THE PERSON MAKING 
THE THREAT.

Seems like the victim is induced against their will to perform or refuse 
to perform a lawful act,

Seems like a blacklist is a 'substantial threat to cause economic 
hardship'. 

Thats a)

I'm not sure I understand b)I. I don't know if an "Unlawful act" here 
means something that is civilly unlawful, such as unlawful participation 
in a group boycott, or unlawful interference in a contract. Or if it 
requires criminally unlawful act, like threatening physical harm.

Seems like the actions of the subscribers of the blacklist fullfill b)II
because their interests are different from those of the blacklist.  
Subscribers interests in in blocking spam, not ham.  Spam doesn't usually
come from companies that would sue for extortion, like Exactis.  CAN-SPAM 
establishes a definition for what can be considered spam.

		--Dean

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