NY AG Sues MonsterHut Over Marketing Spam

Ian Hill writes: "This BBC article tells how NY State Attorney Elliot Spitzer has sued marketing firm MonsterHut.com over "millions" of unsolicited e-mails. He claims MonsterHut.com falsely told its clients that e-mails sent on their behalf were sent to addresses who registered themselves as interested parties. Also at question is how exactly these addresses were collected." eviljim adds a link to a press release from New York's Attorney General and a reminder of how MonsterHut was disconnected from their ISP.

Comments

Re:There is one!

[Tackhead]

> Hey, Coward, this is not a speech issue. It's a property rights issue

Amen.

I'll see your Fifth Amendment response, and, I'll raise you a Supreme Court ruling.

"Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit. We categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient. The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."

- Chief Justice Berger, U.S. Supreme Court, Rowan vs. U.S. Post Office Dep't, 397 U.S. 728, May 4, 1970.

A man's home - and his email box - is his castle. Any spammer invoking the First Amendment is full of it.

Attorney General Spitzer, YOU ROCK.

Re:There is one!

[Tackhead]

> To take your point a little further. Why can I not bill for time spent disposing of junk mail?

In the US, your mailbox doesn't actually belong to you - it belongs to the US Post Office. They allow you to take mail out of it.

I don't like junk mail, but someone's paying the US Post Office to deliver the snail junkmail to mailboxes which are the US Post Office's property. (To be absolutely technical - I think it's something like "you may purchase and own the physical container on the fencepost near the driveway, but the USPS still owns the space within it.")

> (in addition, materials garbage bags, etc.) What about electricity used to power the doorbell when a solicitor comes?

OK, fair enough :)

The (non-property-rights) issue with spam is the one of scale -- junk mail costs money for the sender to deliver. Door-to-door solicitors are throttled by the time/effort that it takes to walk from door to door. Even telemarketers are rate-limited by the number of drones they can have behind the predictive dialers. (Which is we've passed laws to try and combat the use of prerecorded telephone messages. But even these are rate-limited by the time it takes the recording to play back into the victim's voicemail.)

Spam, regrettably, has no such bottleneck. Even if you don't agree that it's theft of the recipient's mailbox, most of it comes through open proxies and open relays -- which clearly qualifies as stealing service from the victimized hosts.

Whether they're stealing very small amounts from millions of victims (the recipients) or larger amounts from a few victims (the bandwidth stolen from unauthorized abuse of intermediate open relays and open proxies) - spammers are thieves.

Paetec made the mistake...

[Skapare]

Paetec made the mistake of agreeing to contract terms that specified that if 2% (I think that was the figure) of the addresses were found to be non-opt-in, that this would be an acceptable margin of error. Presumably MonsterHut would have removed them from the list if asked. Even in the worst case of assuming that every complaint was one of those non-opt-in addresses, the complaints would have had to reach the level of 2% for Paetec to disconnect them under terms of the contact. It's that contact that allowed MonsterHut to get the injunction. MonsterHut didn't need to say that 100% were opt-in ... it only needed to say that 98% were opt-in, and Paetec didn't have enough numbers to prove that more than 2% were genuinely non-opt-in, at least not initially.

Paetec made some legal blunders. The rest of us can learn from their mistakes. I'll give Paetec the benefit of the doubt for being fooled in this case. A future company will not get that from me.

One step an ISP can do (if they didn't stupidly sign away any rights to do this) is to put the spammer on static IP and set up reverse DNS to name them with the spammer's domain name. Then I can block the spammer without blocking the ISP, regardless of the stupidity of the ISP's lawyers. And this is my common practice ... I block just the spammer if they are in reverse DNS identified static addresses. And I block them by their domain name, so if they move, even to another ISP, they are still blocked. They have to change domain name to evade this (and I'm sure many have).

Also, I do all my anti-spam blocking at the server during the SMTP session. I don't want their spam in my servers, and I don't want rejection notices to sit undelivered for days, either. By stopping spam before the mail is delivered, it doesn't get queued and the sending server has to deal with the rejection (but there is still a rejection in the cases of legitimate mail getting caught so the sender at least knows something happened, and can look for a way around).