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I Won A Lawsuit Against A Spammer
Ellen Spertus writes: "I sued Kozmo.com for sending me unsolicited commercial email and won using California's anti-spam laws. I believe it is the first case of its kind. Read the whole story, including why this particular piece of spam pushed me over the edge and how I sued in California Small Claims Court. I doubt I'll ever collect, since Kozmo is going out of business, but I'm very pleased with the outcome." Please do this.
I doubt I'll ever collect, since Kozmo is going out of busines
But I thought spamming was a big money maker...
Update (April 17): I won!
Background
In November, I received email from Kozmo.com that stated that it was being sent to people who had NOT opted in to receive announcements. My complaint to privacy@kozmo.com (the address listed on their website) bounced. A message I sent to customer service was replied to with the statement that the message was not sent in error; they were intentionally mailing people who had not opted in. At this point, I sent a registered letter to Kozmo, asking for (1) an apology, (2) $250, and (3) assurance that this would not happen again. I said that, if I did not receive these, that I would file suit and expected to win under California law. I was not able to get the names of Kozmo officers from the website or by phone, so I addressed my letter to Christopher Shimojima, who was listed in a magazine article as being the VP for customer service. I received the return receipt but no reply. I sent a second letter, which was not replied to in a timely manner.
I filed suit in California Small Claims Court for $500 against Kozmo.com for violating our agreement and sections 17538.45 and 17538.4 of the California Business and Professions Code. I had the SF courts serve papers on Kozmo by registered mail. I paid $27 in filing fees. A court date was scheduled for Wednesday, April 4.
Eventually, I did get a response from Kozmo to my letters. Specifically, a message was left on voicemail denying any wrongdoing but offering me "ten Kozmo dollars". I did not return the message.
Hearing: April 4, 2001
I prepared for the hearing by printing all relevant documents in duplicate and highlighting key sections. I tried emailing privacy@kozmo.com, still listed in the privacy policy, to see if it worked and got another bounce. I made a printout of the privacy statement and the two bounces.
At the beginning of the court session, the clerk determined who was in attendance, at which point I found out that Kozmo had sent a representative. The clerk informed us that we needed to share any exhibits with the opposing side, so I gave copies of my documents to the Kozmo rep. (I had only made two sets of documents, one for me and one for the judge. I should have brought three copies.) Two other cases were heard before mine, both of which ended with the judge saying she would mail her ruling in 1-2 weeks. (The other cases involved a car towing and an injury at a Safeway grocery store, apparently due to slipping on chicken grease.)
The judge first asked me to state my side of the case, which I did, as above. I also pointed out that in addition to being the recipient of the email, the mail was routed through a machine that I own with my husband, which may make me qualify as an electronic mail service provider under California Business and Professions Code 17538.45. (The spam was sent to yap-ers@spertus.com, then forwarded to spertus@mills.edu.)
The judge than asked the Kozmo rep to tell her version of the story. She claimed that the mail was not unsolicited commercial email because:
I had an existing business relationship with Kozmo. (This is a reference to paragraph a2A of 17538.45.)
It was not an advertisement; it was a service announcement letting customers know that they could opt in.
Furthermore, she said:
It was only a single message, not multiple messages.
Section 17538.45 applies to electronic mail service providers, which would not apply in this case.
Kozmo's privacy statement only promises not to share our email address, not to avoid sending us unwanted email.
When it was my turn again, I responded to the points:
Confirming that, yes, I did have a business relationship with Kozmo. (It seems like good manners and good policy to express agreement when the opponent says something with which I can agree.)
Arguing that the message was not just an announcement. Its second paragraph, which I showed the judge, announced new services. I said that I do not know if I qualify as an electronic mail service provider, but that my husband and I do serve several domain names on our computer and forward email for about a dozen people.
I did not respond to points 3 and 5.
During the wind-up phase, the Kozmo rep said that I had not received a timely response from Kozmo because I had sent my complaint letter to someone who was no longer at the company, having left the previous summer. I said that I had not been able to get the names of the officers from the website or by telephone but had gotten it from an article about Kozmo from that summer.
The judge asked us for any documents we wished her to consider. I gave her the above-mentioned documents, plus a few articles about successful suits against spammers. As with the other cases, she told us to expect the decision to be mailed next week or the following one. I will update this site when I receive it.
Judgment
On April 17, I received this judgment that I won my case. I was awarded $50 principal plus $27.50 in court costs. I believe this is the first case of its kind in California. I am very pleased.
... this should be written up as a HOWTO-killspam somewhere, and included with all Linux distro's as standard fare in the docset tarballs ...
...
Start it small. Write it up and talk about it a lot. Snowball it. Just like we did with Linux and countless other technologies
; -- the corruption of government starts with its secrets. a truly free people keep no secrets. --
I suspect that this is a moral victory, but unless spammers see huge cash awards in cases like this, they won't stop. I expect that Kozmo (well, assuming they stayed above water) would have just written this off as a small expense in their advertising campaign.
Actually, this is exactly the sort of thing that could turn the tide. One big reason there is so much spam is that it costs the spammer next to nothing. Spend $100 for a massive list of emails, and $15 for an ISP and you can send millions of spams each time. The $100 only has to be speant every few months (or buy harvester software as a 1 time expense). The 1 judgement probably added %80 or more to the cost of the spam.
One judgement for $77 won't do much, but it will show Californians that they can win in court. Two judgements for $77 still won't do much. However, 10 court dates (somebody had to be paid to appear in court) and 10 judgements for $77 and you've substantially multiplied the cost of spamming.
It's the sort of thing that could at any time without warning snowball into significant costs and a great deal of lost time for the spammer.
My wife answered the phone the other day, & it was a telemarketer for Qwest.
Telemarketer: We'd like to offer you this new service that will help you block unwanted calls from telemarketers.
My Wife: Will it block sales calls from the phone company?
TM: Uh no.
My Wife: We're not interested. [hangs up]
Geoff
I think I see a trend here. Maybe for them it really would be easier to muzzle the entire internet than to produce p
I suspect that this is a moral victory, but unless spammers see huge cash awards in cases like this, they won't stop. I expect that Kozmo (well, assuming they stayed above water) would have just written this off as a small expense in their advertising campaign.
Now, if the author had organized a class-action lawsuit... so that one court win could cost $50 * (# of people in suit) that might get their attention. As it is, if it only cost them $75 plus a lawyer's time, I imagine they figure they'd be making money anyhow, if the e-mail spurred some new business....
Sure slashdot is all well and good, but it has a pretty low eyeball count. Chances are you'll get ignored, but you shoud send this as a story to major news outlets in your area/CA in general. Most newspapers have a section on the internet these days that is printed once a week; E-mail the editor. Also good would be the editors of business sections. Try the wall street journal. This is the only way other spammers may see this. It's not much more effort then you've already gone through, and besides, if it get's published you've gotten to brag to so many more people!
Get the word out!
Sort of - but not quite. The decision has to be appealed and confirmed in order to set a precedent that must be followed in the future.
However, what this does do is to add to the growing number of cases where spammers have lost. At some point, someone will ask their attorney "So should I spam my customers?" The attorney will look at the history of spam-related cases and say "No, because 15 other spammers have been sued and lost; your potential liablity will be $78 per email sent."
Lawyers are risk-averse; this case sets the precedent that sending spam is risky.
I worked briefly as a telemarkter one summer. This is how a telemarketer is scripted:
1. Call phone number
2. If no one is home, then place number on the call-back-next-week list. Goto 1.
3. If person declines offer, then place their phone number on the call-back-in-six-months list. Goto 1.
If you truly want to stop receiving cold calls, you should politely ask to be removed from all of their calling lists. If they call you back in less than one year, you can supposedly sue them in some states, but it is difficult to remember or prove whether the same company has called you twice.
If you piss them off, however, many telemarketers will put your phone number on the call-back-next-week list to harass you!! Yes, telemarketers are annoying, but they are in the position of power. Be polite and use their power for your benefit!
cpeterso
So, this guy was already a Kozmo.com customer, and he's complaining about getting administrative email from them? I think that certainly qualifies as an "established business relationship" for determining whether or not a message is "unsolicited" commercial email. How is this spam? In fact, this is a message that tells you that if you ever want to get an email update, you have to tell them "yes" instead of having to tell the "no" to not get them. If he didn't want email about his account, he should've never created one in the first place.
Admittedly, I don't have all the facts since the site is Slashdotted, but if this guy was a Kozmo.com customer, I don't see how he could've won this case on any legal merits. It sounds like Kozmo.com couldn't afford the legal costs (which would've been way more than $50) and just paid him the money to get the matter out of their hair. Maybe California's definition of spam is a little broader than those that I'm familiar with.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
Bottom line: be carefull when calling "free" phone numbers.
I think this is the wrong target to try to take down. Most legitimate companies are ok about not sending junk to you. If all else fails, call them up and have your account terminated. All you've done is kick a dying dog here.
The real people who need to suffer are the assholes who buy mass-mailing software, fish for accounts to hijack, or create fake ones by the dozen, and mass-spam everybody, clogging up ISPs until they are kicked off, then repeat the process. They need to burn, severely. Winning a suit against a poor gasping dot com is not much of a vicotry.
It's 10 PM. Do you know if you're un-American?
foo.c: Warning: 17 warnings omitted due to --no-warn option.
I'm glad someone took the time and effort to sue someone for spamming. Maybe it'll make other companies think twice before spamming me.
On second thought, it probably won't, unfortunatly.
Until then, I have my good friend, the "delete" key. Takes a second, gets rid of my problem. It's not THAT difficult.
The Good Reverend
I'm different, just like everybody else.
I used to do what you are doing, have you tried spamcop? It saves me a lot of time. I just forward the spam to spamcop@spamcop.net, I get a reply with a URL, hit the URL, it traces everything for you and prepares a letter you can send with the push of a button. Most of the time it gets stuff right, though of course you still need to double check everything before you send... but it's a great timesaver.
"That old saw about the early bird just goes to show that the worm should have stayed in bed."
=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Friends don't let friends enable ecmascript.
Sometimes you actually need to get announcements out. We were running an early version of a client's website, and we had a problem with the client massively changing the system. We had to scrap the old user accounts, so we e-mailled everybody.
Under this kind of judgement, we'd have been considered spamming.
What should I have done?
Sometimes you need to send out announcements. It wasn't like Kozmo was sending you a weekly newsletter, they needed to send an e-mail.
I agree with the posts that this wasn't real scummy spamming.
I don't know why Kozmo did this, but I think that you blew one e-mail WAY out of proportion.
Alex
When you call to first activate a card, you may request that the issuing company does not send you any balance transfer checks- it's like a bit they set in your customer profile. You may call the 800 number on the back of all your existing cards and ask them to stop sending you BT checks. If they ask you for a reason, don't tell them that you're sick of their junk mail- tell them that you have an unsecured mailbox and they're threatening your credit record.
You may also call the 3 credit reporting agencies and tell each of them to mark you as unwilling/unable to recieve solicitations for credit. They usually do this for people who have been on the victim end of an extensive identity theft- not someone just stealing your card and making a couple of purchases, I'm talking about applying for additional cards, setting up bank checking and savings accounts, applying for car loans and such. Tell the CRA's (ALL of them) you're afraid of having this happen to you- throw in something about mischevious teenage neighbors with computers and you should be all good.
I know all this because I moved in february, fwd all my snailmail at the post office 2 weeks before the move, and changed my address with all the companies I felt it necessary to continue to communicate with (WellsFargo, American Express, National Geographic, etc). For some reason, DiscoverCard still felt it was necessary to send BT checks IN MY NAME in the US mail to my old address. I got my statement last month, and there were 3 charges I didn't recognize, and when I called to report them the security agent on the other side was like, "Oh, good thing you called, because someone tried to do a $5000 balance transfer to your account yesterday. Do you know anyone named Isiaih?"
So I'm not out anything, but Discover screwed itself for a couple thou by spamming me. I guess the new business they get offsets the risk...
Humpty Dumpty was pushed.
Not entirely. You can call 800-555-1212 and find out the reseller who owns the 800 number, and get the contact info for that reseller. You can then advise the reseller about the illegal activities of their customer and ask where to send the subpoena to obtain full customer information. This will rattle them and you will have as much info as you can get until you proceed with court action.
You can also try http://www.555-1212.com, but most times spammers aren't listed 800 numbers. Maybe we need a regulation/law requiring legit contact info for 800 owners, not unlike what is "supposed" to be done for web pages.
Also, perhaps a web page that lists and identifies these vermin? I can contribute a couple when I find the paperwork, including http://www.fax.com - a fax spammer. They were very upset when I finally tracked them down and identified them.
good luck
The first thing we do, let's kill all the lawyers. Shakespeare, Henry VI, Part 2, Act 4, Scene 2
eBay was doing something similar to this (in terms of unsolicited emails, not suing spammers) recently. Can anyone else smell a potential lawsuit?
I wonder how long it'll be before we see "MAKE BIG $$$$$ SUING SPAMMERS" spam...
If you don't want my koalas, baby, don't shake my eucalyptus tree.
Darn it! Now you've spammed /.! Give me $50 at once!
___
__
Do ya feel happy-go-lucky, punk?
Or..... you could go to a semi-out of the way block of pay phones, dial the 800 number on each phone (which you can do with no money since it's toll free) and leave the phones dangling off the hook. You use up their lines and you cost them money.
You told us not to bother you. But someone else told us you might be wrong! So we're bothering you.
The writer should get some kind of award, anyway...
sulli
RTFJ.
I thought that this was great until I read the actual laws involved. The California Business & Professions Code 17538.45 (the law that the individual sued under) states that an Email Service Provider (ESP) may sue individuals and companies that send Unsolicited Commercial Email (UCE) over their servers.
The only reason that the individual was able to win her suit was because her email is forwarded to one machine to another which (in her words) 'may make [her] qualify as an electronic mail service provider'.
This is indeed a victory but it's a small one. The responsibility still lies with the ISPs. Most individuals won't qualify as an ESP and, therefore, can't sue.
Here's the offending spam, reprinted from the website:
Delivered-To: spertus@mills.edu
Date: Thu, 23 Nov 2000 23:16:08 -0500
From: Kozmo Customer Service
To: Valued Kozmo Customer
Subject: Service Update from kozmo.com
Through customer feedback we heard that many of our members like you,
who originally opted not to receive occasional e-mail news from us,
would like to change their preference. Now, you can opt-in to our
subscriber contact list via the Web site -- http://www.kozmo.com -- by
clicking the "My Account" button, going to the "My Personal Info"
section and entering your e-mail address. If you choose not to
opt-in, your original preference will not change.
You also may not have heard about a new service at kozmo.com that
revolutionizes gift giving. When you first joined kozmo.com, you
could have products delivered to your door in under an hour. Now you
can use our new gifting feature to have any item on the site delivered
as a gift to anyone in our service areas in 11 cities across the
country.* Every item we carry -- from DVDs to MP3 players, diapers to
baby blankets, gourmet chocolates to martini glasses -- can be sent as
a gift. We can deliver your gift in our new signature orange box with
a personal greeting. We'll even deliver gifts on Christmas Day!
You can also subscribe to our e-mail updates by replying to this
e-mail and typing OPT-IN.
Happy holidays and thank you for choosing kozmo.com.
Best regards,
Your friends at kozmo.com
*Subject to inventory and service ability. When sending a gift, please allow
extra time for gift processing and packaging.
Copyright 2000 Kozmo.com, Inc.
I mean no offense however when I tell you that I'm sticking to my chicken fat slipping scheme. So far I've made tens of thousands of dollars, free groceries and theaputic massages. Life is good.
I love the smell of Karma in the morning
DON'T DO THIS! Don't try to make ISP's in charge of regulating traffic. If ISP's are sued for spam charges, then they will feel a need to register all sorts of traffic.
This is a very slippery slope, and while I agree it could be effective against spam, it's not a road we want to go down. Not unless you want even more draconian TOS's than we have now...and for them to be rigidly enforced. I'm sure a lot of /.ers have rather large p0rn and MP3 collections and host servers n residential connections. These are forbidden in most TOS's, and if ISP's become responsible for their traffic, you can bet there will be a crackdown. Not to mention the possibility of segmenting off other networks because of "questionable" content. This would not be a good thing...think about it.
It's not an ISP's fault if a company sends Spam. The ISP (should be) simply providing a link to the Internet. What is done with that link is the company's/individual's business.
The first is your traditional account-fishing, mass-mailing, waste-of-space spammer. These are the guys who want you to MAKE MONEY FAST, TRY MY NEW DIET PILLS, and RID YOURSELF OF SPAM FOREVER (one of my favorites.) And yeah, these guys are generally hard to track down because they use fake addresses, bounce their spam off of unsecured mail servers, and use dial-up accounts, so they don't have a static IPs.
The second group, and the group that I feel is more insidious, is the legitimate businesses. Any idiot can spot one of the aforementioned spams from a mile away, but when I get a piece of e-mail from a real company, and it looks like someone with at least a 5th-grade education wrote it, I'll usually read it. In this case, the plaintiff specifically asked not to get e-mail from this company, and they sent her crap anyway. They even went so far as to tell her that they knew she opted out of getting e-mail from them, but they just wanted her to know she could.
This is nothing but thinly-veiled bullshit. Apply this to almost any other situation, and it becomes evident that this practice is wrong. For example, let's say I just moved, and I got a new phone installed. When I called the Phone Co., they asked me if I wanted some add-on service, like Caller ID, which I declined. Now, let's say in a month, I get a call from someone at the telephone company, saying that they know I didn't want Caller ID a month ago, but they thought I might be interested in it now. I can assure you that you wouldn't want to be in the room if I got that call. (Well, actually, it might be kind of funny...)
The only reason some people think this is OK with e-mail is because they pay a fixed rate per month (rather than per byte or kilobyte), and they can just delete the mail in a split second. Well, some people do have to pay for data transfer (or connection charges for time on-line, and over a modem, spam can add up), and this is still a waste of my time, whether it's a second of my time (in the case of spam), or ten minutes of my time (in the case of a phone call, where I'd be conversing with the unfortunate soul on the other end of the line for a while.)
Executive Summary: Spam that is blatantly spam is bad, but spam that poses as genuine business-to-business or business-to-consumer marketing is even worse. All forms of spam should be stopped post-haste.
That kind of response would end spam in an instant. It would disappear from the Internet just like horse-drawn wagons from New York City.
--
spam spam spam spam spam spam
No one expects the Spammish Repetition!
Scientists restrict study to entire physical universe; creationist
Uncheck this box if it's not the case that you don't want to not receive daily newsletters and product updates neither from us, nor our affilates, unless not authorized by us.
--
Please do this.
Please do what? Go out of business?
(*#&$%#$'in ambiguous reference.
goto goto.com put "bulk email" in the search field you will get a list of companys that sell spam software these companys pay goto.com per click if we slashdot those links we can cost these scum bags a fortune!
http://Lenny.com
4 great justice!
the best thing to do with 800 number spam is call the number It's costs the spammers money and their time especially if you leave your name and number and they call you back thats when you tell them how much you hate spam just imagine if 1000 people called their number every time they sent out spam it would totaly screw them up
for more spam fighting tips check this
http://Lenny.com
4 great justice!