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While many anti-spam activists decried the national CAN-SPAM Act legislation, a number of other anti-spam individuals and business owners decided to get busy.
The Informal Coalition of Private Anti-spam Litigants (ICPAL) is perhaps the first quasi-official manifestation of a new front in the war on spam. Call it hand-to-hand combat: They're using old-fashioned property and trademark law to win judgments with arguments that non-technical judges can understand.
ICPAL is comprised of attorneys, a couple of local ISPs, an anti-spam software developer and several activists with dozens of successful small claims actions under their belts. And it plans to file hundreds more.
Nor are the feds sitting on their hands. Recently, Operation Slam Spam, a partnership between the Direct Marketing Association and the FBI dedicated to bringing spammers to justice, resulted in arrests or legal action against dozens of individuals. Still, the enactment of CAN-SPAM seems to have done little to stop the spew.
The act, which became law on January 1, sets forth guidelines for headers, subject lines and opt-out methods. It allows state attorneys general ISPs to sue spammers, but it took away the right of individuals to sue them.
Marketers and Congress hailed CAN-SPAM a great leap forward in the fight to reduce unsolicited commercial e-mail. But activists called CAN-SPAM a bunch of legislative hot air. They claimed it wasn't as tough as the laws many of the states had already enacted, yet it superseded those laws while taking enforcement out of the hands of the states.
However, while CAN-SPAM generally does overrule tougher state or regional anti-spam laws, there are a couple of exceptions: It doesn't burke statutes that prohibit "falsity or deception" in any portion of the e-mail. And it doesn't preempt any state laws that aren't specific to e-mail, such as state trespass, contract or tort laws.
Those exceptions provide two big gotchas for individuals who want to fight back.
Going Hand-to-Hand Against Spam
The Institute for Spam and Internet Public Policy (ISIPP) launched a new service to help businesses whose domain names have been used in vain by spammers.
What happens is spammers forge e-mail headers, using the names of legitimate business, to get past black lists and fool recipients into opening unsolicited commercial e-mails. ISIPP shows the businesses how to sue spoofers for trademark infringement. And according to ISIPP CEO Anne Mitchell, trademark law is more easily understood than CAN-SPAM, and it provides for statutory damages for infringement. The statutory damages provision means that complainants don't have to prove that they actually lost money in order to get a money judgment.
Dan Balsam, a Los Angeles-based anti-spam activist with 17 court wins under his belt, sues under the section of California's Business and Professions Code that prohibits false or deceptive e-mail headers.
"The reason I win is that I'm right," said Balsam. "I know what the law says. The spammers break it. I go into court, and I win."
Balsam is a former Internet marketer himself; he says that's why spam offends him so much.
ICPAL founder Jim Gordon, of Richland, Wash., rejected a $40,000 settlement offer from Commonwealth Marketing Group, a company that markets consumer credit cards via e-mail. He brought suit in 2003 under Washington state laws that CAN-SPAM did not supersede, including an e-mail statute, an unfair business practices statute and a statute prohibiting unlawful harassment.
"I get roughly 1,500 every single day of my life," said Gordon, an affiliate marketer for health and nutrition products. "Last summer, I got fed up and sent out a bunch of demand letters."
Gordon is asking Washington state court to give him $3.1 million. And he's asking for even more in another claim against Impulse Marketing Group, a company he says Commonwealth hired to spam on its behalf. Gordon said he may file as many as 50 or 60 lawsuits in the coming months, all targeting spammers.
Joe Wagner, president of Hypertouch, a Foster City, Calif., Internet services provider, won two $5,000 judgments for actions he filed in 2003 under California's anti-spam laws. He went after Discover Financial Services for hiring a marketing company that harvested e-mail addresses and sent e-mail to people who had opted out.
And this year, he sued remodeling information site BobVila.com and interactive marketing agency BlueStream Media for sending e-mail that didn't comply with CAN-SPAM. The case is scheduled for trial in March 2005; BlueStream denies the allegations.
Bennett Haselton, a Bellevue, Wash., man who writes censorship-blocking software for Voice of America, first sued a telemarketer in 2001. Since then, he's won 15 or 20 judgments against callers, faxers and e-mailers, collecting about $10,000. Using parts of Washington's laws that CAN-SPAM does not supersede, he takes on spammers in small claims court.
"One of the annoyances," Haselton said, "is that every judge has different rules about what they think the law allows." Some insist he can't sue in small claims court because he hasn't actually lost money by being spammed. "I don't really blame the judges for contradicting each other," he said, "because the law is written unclearly."
Ben Livingston, who runs a small Seattle ISP called INWA, has won lots of judgments in the last three years against faxers, telemarketers and spammers.
"As a small ISP, we have a finite amount of resources, and the volume of spam we get is enormous," he said. After failing to collect most of those judgments, Livingston said he started limiting his targets to those he could easily find a phone number for.
He said that despite his general cynicism, "I have hopes for any coalition where there are people who actually want to stop spam. It's good to have a group of people who are up-to-date and keeping things moving. It's nice to have Jim Gordon or someone reminding me that I want to sue the hell out of spammers."
The Hit Parade
The ICPAL members convened after Gordon contacted Livingstone and Haselton to get information on their spam-fighting tactics.
"We think the CAN-SPAM Act is an open license to spam with very little protection for the public," Wagner said. "But we are attempting to use what few protections are available to punish some unrepentant spammers."
Their plan of attack starts with filing many more lawsuits. They also want to inspire others to follow suit, so to speak, by sharing resources and successful legal strategies. ICPAL will act as a clearinghouse for resources, tools and information. Together, the group wants to develop a database of known and suspected spammers, track individual court cases and share winning tactics, as well as develop software to automate the process of hunting spammers down.
Recently, ICPAL joined forces with Computer Forensics Group, which provides electronic discovery services for attorneys, sifts through hard drives for deleted files or altered data, then analyzes and testifies on the evidence. The company will help ICPAL identify spoofers and track down spammers.
"We didn't want a formal coalition, something spammers can attack," Gordon said. "We'll keep it informal but share all information necessary."
Though the prospect of suing spammers may seem financially rewarding, none of these activists is in it for the money. That's just as well, because it can be harder to collect from spammers than to win the suit in the first place.
"Only a tiny fraction of the spam you get can be translated into a court case, let alone a judgment and actual money," Haselton said. "This by itself will not solve the spam problem. But any transfer of money from a spammer to anyone else in the world is a good thing."
And sometimes, the revenge is sweet. On one recent weekend, Hypertouch's Wagner dropped seven iMac computers off at the San Francisco Coalition for the Homeless. He purchased the computers with settlement money from spammers and junk faxers.
"Using the punishment of people who are most abusing the new economy to help those most left out," he said, "has a satisfying and more than very aesthetic appeal."