Are we committing fraud?

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Posted: Mon Oct 06, 2008 5:25 pm

(1) 'Commercial electronic mail message' means an electronic
mail message sent for the purpose of promoting real property,
goods or services for sale or lease.

I have never seen a baiter send out emails that would meet this definition.

419Eater is my life Joined: 22 Sep 2008 Posts: 381

^^ Remember that the "purpose" of the e-mail is judged by the face of the e-mail, not the intent of the sender. So if the e-mail says it's a part of a commercial venture, then it is.

Scholarship funds, churches...all of these are fine. But if you're looking like a bank, or an investment firm, or any of that....you're into commercial e-mail.

Posted: Mon Oct 06, 2008 5:35 pm

Connie L. Gus wrote:

^^^Those are some butt long linkies. I am not a fraudstar and I take a death threat as a compliment.

On the other hand, according to one of my lads, I am a Fraud Star, and I'm proud of it.

I liked your brevity by the way. Laughing

Trophy Videos · Posted: Mon Oct 06, 2008 6:11 pm

Thanks for the great info, Barrister Bob. This topic does come up periodically, and this is a good explanation of US laws. Thanks for enlightening us. Smile

I don't think I even want to know if suggesting that a voudou ritual, complete with the burning of a Barbie doll, is needed to cleanse a person of an ancient curse of a dead Egyptian pharoh.... Cool

419Eater is my life Joined: 22 Sep 2008 Posts: 381

SlapHappy wrote:

I don't think I even want to know if suggesting that a voudou ritual, complete with the burning of a Barbie doll, is needed to cleanse a person of an ancient curse of a dead Egyptian pharoh.... Cool

That's totally factual. I see no fraud. Twisted Evil

On a legal note; again, you're outside the word "commercial" there and even closer to the Extortion part, but you're not really in the butter zone for that. In short, it's much harder to prosecute you if you're faking a non-profit of some form.

Posted: Mon Oct 06, 2008 9:09 pm

Thanks for the info.

I guess if you have a professional code of ethics in real life then breaking it as a baiting character might present a dilemma, especially if you think your email correspondence may be under scrutiny for some reason. But having seen the inertia that greets most attempts to have scammers, let alone baiters, investigated by over-stretched LEOs then provided the bait doesn't involve overt cash baiting (which we specifically prohibit here) then I'm willing to risk a the occasional well-timed fake airline booking confirmation or whatever.

The standard advice is to do what you are comfortable with and that's an individual choice. Not only do we have several lawyers here, we also have baiters who also work in law enforcement in one capacity or another and I'm sure that each of them knows where to draw the line. Or, perhaps knowing that the lads almost certainly are not going to face any kind of conventional justice then baiting them is a worthwhile alternative.

419Eater is my life Joined: 22 Sep 2008 Posts: 381

^^ Absolutely. Someone asked a question as to what was legal, and I had the info.

Also, faking an airline booking is fine. It's faking government-issue ID that's a problem.

Baiting Guru Joined: 03 May 2007 Posts: 18313

If the only thing that's criminal is making ID's, we're golden. We post over and over not to send any ID to lads.

419Eater is my life Joined: 22 Sep 2008 Posts: 381

Ima Baeder wrote:

If the only thing that's criminal is making ID's, we're golden. We post over and over not to send any ID to lads.

Quick TL;DR of my big post

What I've found boils down to:

1. Forging government issue IDs
2. Facially commerical e-mails if you have five or more fake addys
3. Threatening a lad in order to get something of value from them (where value is satisfied by anything greater than zero)

With the caveat that this is only the federal law, and that any given state may have an additional criminal code that covers more territory, so don't rely on me alone

Master Baiter Joined: 08 Sep 2008 Posts: 113

I'd like something clarified, please.

I can understand I'd be in commercial territory with one of my baits; there's a woman that wants to buy a house, and I said I'd sell her mine. (And, just to say, I don't have 5 baiting email addresses...)

But what about some of the standard baits that are like "We're going to say you're next of kin to get an inheritance (or a box full of money, etc).." Money is involved, but it isn't a product per se, and it seems my services would amount to an email stating I'm related to the dead Mr. Smith.

Is it just that I stand to profit from this venture that makes it commercial? And if TWAT were to receive the money, it's not for profit? (And perhaps because I'm new to things and haven't got it all figured out, I've only been acting as an individual, not working for a company, if that matters..)

Posted: Tue Oct 07, 2008 2:51 am

From the definitions listed below, I don't see how any of your examples could be construed as commercial.

From Cornell law school, here:
http://www4.law.cornell.edu/uscode15/usc_sec_15_00007704----000-.html

Quote:

(2) Commercial electronic mail message
(A) In general
The term “commercial electronic mail message” means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).
(B) Transactional or relationship messages
The term “commercial electronic mail message” does not include a transactional or relationship message.
(C) Regulations regarding primary purpose
Not later than 12 months after December 16, 2003, the Commission shall issue regulations pursuant to section 7711 of this title defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message.
(D) Reference to company or website
The inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this chapter if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service.

419Eater is my life Joined: 01 Oct 2008 Posts: 349

Gnasher wrote:

Thanks for the info.

...provided the bait doesn't involve overt cash baiting (which we specifically prohibit here) then...

Whats that?

Baiting Guru Joined: 03 Mar 2006 Posts: 7103 Location: Yes

The "Forgery" statute quoted by Bob requires the intent to use the ID in a crime (e.g. defraud the U.S., or say, trafficking in forged IDs). So, it's not really applicable to most baiters here.

The statute dealing with fraud and electronic mail has to do with spammers and using bots to create fake email addresses for the purpose of spamming people or defrauding them by appearing to sell goods etc. Again, that statute is not applicable to baiting. Hence, that statute has a lot of verbiage about number of email addresses and email messages sent out, e.g.:

Quote:

the volume of electronic mail messages transmitted in furtherance of the offense exceeded 2,500 during any 24-hour period, 25,000 during any 30-day period, or 250,000 during any 1-year period

This is not something a baiter has any worry over.

Not quite a Newb Joined: 14 Jul 2005 Posts: 41

Eater has been around now for quite a few years. In addition to the fact that we have several LEO folks as members, various LEO agencies (US and UK) are quite aware of what we do here.

If we were breaking any laws, we would have heard about it.

@emsjeep

Cash baiting: Go to Guidelines, click the link, then scroll down to the bottom of the page and start reading after
Baiting for cash:- PLEASE READ CAREFULLY

Master Baiter Joined: 08 Sep 2008 Posts: 113

Dorothy wrote:

From the definitions listed below, I don't see how any of your examples could be construed as commercial.

Thanks. I guess I just don't understand how there would be commercial baiting in the first place then. Perhaps my newb-ness is just showing through. The general reference to commercial emails threw me and, while I wasn't petrified at the thought, I didn't want to leave my ignorance to chance.

Posted: Tue Oct 07, 2008 3:37 am

Come to think of it, don't we have a baiter here who was actually referred by the Secret Service when she called to report she had been scammed?

Posted: Tue Oct 07, 2008 4:17 am

Interesting discussion!

For the record, I have Multiple Personality Disorder and all of my baiting characters are my real personalities and thererfore not faked at all. Shocked

"shut up"
"no, make me"
"hey, I was sleeping here"
"you big dummies, don't tell all of our secrets"

Disclaimer foot note: Not to make light of the subject at hand or the disorder named above. I think it is important to bait in a way that you as the baiter is comfortable. Knowing that there are laws relating to pretending to be some one you are not is helpful and significant. Thank you BtE for the time you spend explaining this small piece of the law. Smile

419Eater is my life Joined: 01 Oct 2008 Posts: 349

Tsnerd wrote:

Eater has been around now for quite a few years. In addition to the fact that we have several LEO folks as members, various LEO agencies (US and UK) are quite aware of what we do here.

If we were breaking any laws, we would have heard about it.

@emsjeep

Cash baiting: Go to Guidelines, click the link, then scroll down to the bottom of the page and start reading after
Baiting for cash:- PLEASE READ CAREFULLY

Ah, thanks...the way it was worded sounded to me like someone baiting by offering cash not baiting to try to get cash...thanks for that, I was worried for a minute.

419Eater is my life Joined: 22 Sep 2008 Posts: 381

geller wrote:

But what about some of the standard baits that are like "We're going to say you're next of kin to get an inheritance (or a box full of money, etc).." Money is involved, but it isn't a product per se, and it seems my services would amount to an email stating I'm related to the dead Mr. Smith.

You basically have to be advertising a commercial service. Basically, unless you're faking that you are some commercial enterprise, you're ok.

JMRazor wrote:

The "Forgery" statute quoted by Bob requires the intent to use the ID in a crime (e.g. defraud the U.S., or say, trafficking in forged IDs). So, it's not really applicable to most baiters here.

Not true. There's a list of 8 different ways to break 18 USC Sec. 1028(a). Some of them require intent, but some of them do not. (a)(1) requires only that a person "knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document"

So if it's just possessing the document, which is in (a)(3), you need intent. But if you actually produce the document (i.e., present it to someone else representing it to be a real ID), then you need no further criminal intent; the intent to produce a forged ID is sufficient mens rea.

JMRazor wrote:

The statute dealing with fraud and electronic mail has to do with spammers and using bots to create fake email addresses for the purpose of spamming people or defrauding them by appearing to sell goods etc. Again, that statute is not applicable to baiting. Hence, that statute has a lot of verbiage about number of email addresses and email messages sent out, e.g.:

Quote:

the volume of electronic mail messages transmitted in furtherance of the offense exceeded 2,500 during any 24-hour period, 25,000 during any 30-day period, or 250,000 during any 1-year period

This is not something a baiter has any worry over.

2 things here that are very, very important.

1. NEVER think that the purpose of a criminal statute matters to a prosecutor. Federal prosecutors turn these things on their heads to screw people all the time.

2. Razor has misread this statute, which is easy to do; the feds almost design these things to be as confusing as possible. The language quoted there is in regard to one of the punishment categories, not predicate language for the offense itself. Basically, that's one of the ways to receive a heightened penalty for committing this offense. It is not an element of the crime that you meet that volume of e-mail. The only elements for the crime are that you fall into one of the listed categories, and one of them is the 5-account-commercial-e-mail issue.

Baiting Guru Joined: 04 Jan 2006 Posts: 3193

The US Code wrote:

(3) Multiple. - The term "multiple" means more than 100 electronic mail messages during a 24-hour period, more than 1,000 electronic mail messages during a 30-day period, or more than 10,000 electronic mail messages during a 1-year period.

That doesn't get us home free; I've certainly sent more than 100 in 24hrs, although not 1,000 in 30 days*. But it raises the bar above the normal run-of-the-mill baiting. Since the emails have to be commercial on their face, then the only standard modality that would be affected is the artwork bait, where you send out loads of replies saying that you're a business and you're too busy to help. There would be ways around that if one was concerned.

In my view, keeping yourself below five accounts is impossible. Those are not five currently active accounts; they are five accounts that you have ever, in your entire life, opened. If you ever spoofed an address to joke with a friend, then you get one less. If, like me, you've got one for email from fellow baiters (see the button below), then you lose another. If you've got a catcher account, lose one. If a lad gets annoyed and spam-bombs an account into oblivion, it still counts against your five.

----
* But I'm not in the USA

Baiting Guru Joined: 03 Mar 2006 Posts: 7103 Location: Yes

Bobtheelephant wrote:

Not true. There's a list of 8 different ways to break 18 USC Sec. 1028(a). Some of them require intent, but some of them do not. (a)(1) requires only that a person "knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document"

So if it's just possessing the document, which is in (a)(3), you need intent. But if you actually produce the document (i.e., present it to someone else representing it to be a real ID), then you need no further criminal intent; the intent to produce a forged ID is sufficient mens rea.

So, you agree with me then -- "intent" is needed in all sub-sections of the statute. If you "knowingly produce" then that's intent, no? Under any sub-section, a baiter would be safe. A baiter is either (a) not knowingly producing the ID to an authority, or (b) not using it to commit a crime.

Bobtheelephant wrote:

2 things here that are very, very important.

1. NEVER think that the purpose of a criminal statute matters to a prosecutor. Federal prosecutors turn these things on their heads to screw people all the time.

2. Razor has misread this statute, which is easy to do; the feds almost design these things to be as confusing as possible. The language quoted there is in regard to one of the punishment categories, not predicate language for the offense itself. Basically, that's one of the ways to receive a heightened penalty for committing this offense. It is not an element of the crime that you meet that volume of e-mail. The only elements for the crime are that you fall into one of the listed categories, and one of them is the 5-account-commercial-e-mail issue.

I didn't mis-read anything. I gave an example of why this statute was created to fight spammers and fraudulent sellers of bogus goods via bots and misrepresentation of their identities. But if you insist:

Quote:

Section 1037 only criminalizes conduct involving "multiple" commercial email messages:

The term "multiple" means more than 100 electronic mail messages during a 24-hour period, more than 1,000 electronic mail messages during a 30-day period, or more than 10,000 electronic mail messages during a one-year period.

Secondly, baiting does not involve "commercial" emails. Being a nifty lawyer, you no doubt looked at the legislative history behind the statute, to wit:

Quote:

The CAN-SPAM Act of 2003, Pub. L. No. 108-187, 117 Stat. 2699 (2003), which became effective on January 1, 2004, provides a means for prosecuting those responsible for sending large amounts of unsolicited commercial email (a.k.a. "spam"). Although civil and regulatory provisions are the primary mechanism by which the CAN-SPAM Act's provisions are enforced, it also created several new criminal offenses at 18 U.S.C. § 1037. These offenses are intended to address more egregious violations of the CAN-SPAM Act, particularly where the perpetrator has taken significant steps to hide his or her identity, or the source of the spam, from recipients, ISPs, or law enforcement agencies.

And as noted above:

Quote:

Section 1037 only criminalizes conduct involving "commercial electronic mail messages":

(A) In general. The term "commercial electronic mail message" means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).

(B) Transactional or relationship messages. The term "commercial electronic mail message" does not include a transactional or relationship message.

Here's my source (assuming you would give credence to the US DOJ).

Baiting Guru Joined: 04 Jan 2006 Posts: 3193

Far be it from me to step into a fight between two lawyers (unless they're lads), but I think you're both misusing the term "produce". It seems not to refer to production to an authority, but to manufacture:

US Code wrote:

the term "produce" includes alter, authenticate, or assemble;

If a baiter created a fake ID, which we don't recommend of course, then it would be hard to argue that they did not do it knowingly.

Edit: Some baiter emails do count as spam under those rules.

Here's one of mine
Here's one of Shiver's

I am guessing Shiver mass-mailed that. I know I did. However neither of us is in the US.

Baiting Guru Joined: 03 Mar 2006 Posts: 7103 Location: Yes

Thud, you are honorary lawyer for the day. Now go make someone miserable! Laughing

So as you said, since we don't create fake ID, this isn't a problem for us.

Posted: Tue Oct 07, 2008 1:12 pm

Actually Thud, "produce" in this sense is "produce for inspection", i.e., present it to someone to inspect/look at/study for the purpose of verifying your identity. I suspect a big reason why the US is filled with such a ridiculous number of often ridiculous lawsuits is the fact that the English language is so... filled with 80 words that mean the same thing, and then each of those words also have 80 other meanings... Razz

Baiting Guru Joined: 04 Jan 2006 Posts: 3193

I stand corrected. As I said, I am not a lawyer. May I impose on you to clarify things a little further?

why does the same section of the code:

Define "Produce" as including alteration, authentication, and assembly
Use the term "use" in the places it may otherwise be expected to use the term "produce"
use the phrase "stolen or produced without lawful authority"

Also, what crime is paragraph a(2) trying to prevent?