California Sues Spammer for $2 Million

KilroyTheVeg writes "The Mercury News reports that the California Attorney General, Bill Lockyer, filed suit against Internet marketer PW Marketing LLC, accusing the company of illegally spamming millions of Californians. The Story is here and the Sidney Morning Herald also has the story here. The suit named PW Marketing LLC (note:subpoena in link is third one down the page) and its owners Paul Willis and Claudia Griffins defendants in the suit which seeks "at least" $US2 million from them for allegedly flouting several state consumer protection laws banning spam mail. All I can say is Make 'em pay, it's the only way to hurt 'em where it counts." Update: 09/30 22:02 GMT by T : Note, that's Sydney Morning Herald.

Comments

Re:Oh yes...publicity always cripples businesses

[LordNimon]

Nice idea, but ineffective. The problem with spam is that there will always be people who respond to it, because they're uneducated. And because of them, spammers stay in business and the rest of us have to suffer.

Re:one of a million

[McDutchie]

ilyahndre wrote:

Its nice to see that a spammer is getting in trouble for the annoyance that they've caused. However, its one spammer, in one state, in one country. There are so many other spammers, how can destroying even one really make a difference?

There are not actually that many significant spammers. The 100 or so top scumbags listed in Spamhaus' ROKSO list send more than 90% of American and European spam, according to Spamhaus. (Read some of those evidence files, very educational.) So catching a big fish does make a significant difference.

Re:So would it be spam if...

[kiolbasa]

Though humorously ironic, this may fall under the definition of barratry, which is to drum up legal turmoil among those who would otherwise not bother with it. No lawyer am I, but I think it has to be made into a class action suit before the State could go contacting people.

Re:slogan

[spectecjr]

Slashdot: We're libertarians, except when it comes to spam.

What's libertarian about *allowing* spam?

It's not as if the law allows us to take matters into our own hands and take down the spammers personally and permanently. So this is one case where one has to turn to the law.

Personally, if people spammed me, I'd give them one warning, and then start hacking their systems. However, as this is illegal and will end up with me paying fines or in prison, this option is not open to me.

Full text of the injunction

[McDutchie]

is here (PDF format).

Class-action lawsuits against spammers...

[Chastitina]

... would be the next logical step.

Hopefully this lawsuit will be the first of many. If enough states jump on the bandwagon & make it easier for private individuals to sue, this crap can at least be pushed out of the US (or any other country that set a good precedent). A few class-action lawsuits with only 10-20,000 offended parties receiving $100-500 apiece plus legal fees would go a *long* way to making spam economically unfeasible.

Tracking spammed e-mail addresses and affected ISPs would be the biggest challange, but a database set up to process forwarded spam (such as (uce@ftc.gov) could provide plenty of evidence as to the extent of the problem and damages. Set up a system so persons who use it reap the rewards of successful spammer prosecutions & you have the perfect incentive to get people to report this superficially "harmless" crime.

ca.gov story -- more info

[caferace]

Here.

Re:one of a million

[Analysis Paralysis]

90% of spam originates from about 100 individuals/companies. Details on the biggest offenders can be found on Spamhaus's ROKSO list.

Deterring these "professional" spammers (many of whom have previous convictions for fraud) should therefore have a far greater effect than the numbers would suggest. Most would probably take their "talents" to greener pastures (anyone short of a few dodgy executives?)

Re:one of a million

[exhilaration]

Good question - if the spammers lose, the precedent would apply only in the state of California. Only if the U.S. Supreme Court heard the case and ruled in favor of California would the precent apply in all states.

But the Supreme Court is under no obligation to hear the case - they pick cases with "interesting" circumstances to establish case law. I seriously doubt they'd give spammers an audience.

So assuming that the spammers fight until the last possible appeal, this is the way it might go:

1) California State Supreme Court rules against spammers

2) Spammers appeal the ruling to Federal Circuit Court of Appeals

3) Court of Appeals rules against the spammers

4) Spammers appeal the ruling to the U.S. Supreme Court

5) Supreme Court declines to hear the case

6) Spammers are out of options

Causes of action seem wrong here; jurisdiction

[billstewart]

The complaints in this suit seem really wrong for this kind of action. Civil suits brought by the state are often somewhat bogus, but perhaps they're appropriate for the cease & desist injunction part of the lawsuit. But they're asking for "civil penalties" paid to the state, in a civil action as opposed to a criminal action, even though these are basically fines for violating business regulations. Civil actions have a lower standard of proof than criminal trials, and that's Constitutionally questionable abuse, plus they're asking for the court to award the state the legal costs for prosecuting them. A civil action would be fine if the suit were on behalf of the people being spammed, and the monies collected went to them, but that's not what they're doing. I'm not arguing that the alleged spam isn't sleazy spam that would be nice to prosecute under some appropriate laws, like fraud - it is. But this suit seems wrong.

Also, there are jurisdictional problems - the State asserts that the defendants are doing business in Santa Clara County (northern California) so they can be tried there instead of down in southern California where they live, based on the assertion that spam was sent to email addresses in Santa Clara County - even though the one spam they're quoting in the complaint clearly says that they do business in Canyon Country, CA, and they don't list any recipients who live in Santa Clara county. That's basically equivalent to busting a snail-mail-order business from a remote jurisdiction because they mailed advertising postcards there.

I haven't read all the business regulation laws referred to, so some of the sections are probably legally correct interpretations of some of California's really bad laws, but the processes still seem inappropriate. A couple of examples:

• Second cause of action, paragraphs 17-18: California has a really obnoxious anti-privacy law making it illegal for anybody to get a mailbox without registering their True Address, which is presumably where they sleep. There have been a few revisions to it - if you're an Officially Registered Battered Spouse, the state will provide you with a mailbox, but you as a regular citizen can't use one. US Snail also has rules that you have to fill out a form when you get a mailbox from one of their competitors, and the state has rules that don't let you receive mail unless you've filled out their form.
  
• Third cause - para 19-20 - looks like it regulates doing business advertising on the internet more strictly than doing business by snailmail or TV ads, and seems to clearly violate the Constitution's Commerce Clause which makes regulation of interstate commerce strictly a Federal matter, not a state matter - otherwise each state you want to have customers from could require you to get an expensive license.
  
• Fourth Cause - it says they're misrepresenting the country they're operating from - but the complaint doesn't say what country they *are* from
  ("Canyon Country" is a city in Southern California), and if it's not in the US, it's not California's jurisdiction and California business regulations shouldn't apply to them.
  
• Fifth Cause - the state argues that by doing many of these sleazy things, they've engaged in unfair competition - but they don't say who they defendants are allegedly competing unfairly with (other spammers? How is that unfair?).
  
• Worse, in Paragraph F, it says that the defendants have used open relays in violation of Penal Code section 502 - but this isn't a criminal complaint, and allegations that somebody might be a criminal is really poor evidence in the absence of an actual criminal prosecution. It's especially tacky because they don't specifically indicate where the alleged open relays are or where the defendants live, which would affect whether a California penal code would have any jurisdiction over them.
  
• The requested injunction complains about them making misrepresentations, but the only misrepresentations it's complaining about are the email and postal addresses used to send the mail and receive the responses - they're not claiming that the actual sleazy pitch is a misrepresentation, which would be an appropriate case for the state to be involved with.
  

All told, it's a terrible case, and it ought to be possible to either find a much better set of sleazy spammers to make an example of, or do a competent and Constitutional job of prosecuting them properly

Re:one of a million

[clueless_penguin]

This is a state case, not Federal. A federal Appeals Court will never see it. The loser in the CA supreme court may appeal to the US supreme court, but it is very unlikely they will hear it. And if they do, it still doesn't apply nationwide. If the US Supreme court were to uphold a CA state law, it just means that other states (or the US congress) could pass similar legislation and have the proper case law to keep another lower court from striking it down.

Re:what if...

[Anonymous Coward]

it would be an even bigger shame if someone (or lots of someones) ran something like the following script from cron every 10 minutes or so.

obvious TODO ideas are a) fetch the second and subsequent pages from the search cgi, and/or b) only fetch the first 10 results rather than all of them and/or c) only fetch results which cost >$1

#! /usr/bin/perl

use strict ;
use LWP::UserAgent;
use HTML::TokeParser;

my @URL;

my $action = 'http://www.overture.com/d/search/?type=home&tm=1& Keywords=bulk%20email';

my $ua = LWP::UserAgent->new(env_proxy => 0, keep_alive => 5, timeout => 10);
$ua->agent('Mozilla/4.51 (Macintosh; I; PPC)');
#$ua->proxy('http', 'http://localhost:3128/');

my $request = HTTP::Request->new('GET', $action);
my $response = $ua->request($request);

my $p = HTML::TokeParser->new(\$response->content);

# build the list of URLs
while (my $token = $p->get_tag("a")) {
my $url = $token->[1]{href} || "-";
my $text = $p->get_trimmed_text("/a");
next unless $url =~ /xargs/i ;
push @URL, $url ;
}

# now fetch each URL
foreach (@URL) {
print "$_\n" ;
my $request = HTTP::Request->new('GET', $_);
my $response = $ua->request($request);
};