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

Full text of the injunction

[McDutchie]

is here (PDF format).

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