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Suing Spammers: What works?
jdedman4 writes "According to Junkbusters, various civil lawsuits against Spammers have used a number of theories, including the analogizing of junk email to junk faxes. As there have been a number of "IANAL, but . . ." discussions of late, I was curious as to which legal theories, if any, you all thought might work against spammers. Does the fact that a spammer deluges us all with automated commercial email subject him and his enterprise to personal jurisdiction in the courts of the fifty states? What torts do the spammers commit (intentional affliction of emotional distress, invasion of privacy, false light, nuisance, et cetera?) Might an unfair trade practices lawsuit be brought? Is state or federal law a better weapon? Why haven't the legislatures been more active in this area? It seems like this is a pure public relations winner for a media-conscious political figure - everyone hates spammers. If this is such a widespread and pernicious menace(which of course it is), why hasn't some enterprising young plaintiff's attorney filed a class action suit? Is it that the spammers are essentially judgment proof, or that they are difficult to find, or all of the law is analagous but not directly helpful?"
Most spammers are probably overseas in countries where they cannot be sued.
Of course IAJAIAC. (I Am Just Another Ignorant AC.
First post?
Outright theft has always been my favorite course of thought. They are stealing my bandwidth, my cpu cycles, my disk space. Not a big deal for one message, but when it comprises 30% of mail traffic, then that means my operating expense is 30% hire. This is real money they are stealing from me. If they paid me, or anyone (post office) to accept it, fine, thats different. The main reason spam needs to be made illegal is because it is outright theft.
The Maverick Partnership
A division of The Which Company Pty Ltd
ABN: 90 091 728 620
Postal: P.O. Box 159, Northbridge W.A. 6865
Phone: +618 6210 1348 Fax: +618 6210 1445
are advertising some book or other.
Any Aussie state or federal laws worth mentioning when I ring them?
This meant that I received all the bounces, irate messages etc. to the tune of over 7000 bounces in the last week and a half. From the email headers of the bounced messages, I was able to trace the sender to Miami Florida using Ameritech ADSL, but that provides little proof.
My real anger is over the people running open relays that aided and abetted this attack. Spam is not just junk email so they are not innocent bystanders. They are similar to someone who helps a bank robber escape from a crime scene. In this case it prevented me from receiving email for several days (my incoming mailbox was full) and created an immense amount of work sorting the bounces out from legitimate traffic (bounces for messages I wanted to know about).
Has there been any precedent for suing owners of open relays or providers of abusive users?
why spammers don't have a return email address, don't have a url to visit and don't have a phone number. I can understand spammers trying to generate business, but when there is no easily discernable way to contact them OR any business, what's the point.
If I drive fast enough at the red light, it'll appear green.
Sue the companies that are being advertised.
They are the ones employing the spammers and if they are selling something, should have a contactable address!
Just a thought
CJC
A comment was made a while back that worldcom had no interest in blocking span because they made money from it. You see - they got paid by the people who created it and furthermore they got paid by the telcos that paid them for access to the POP's.
Its all about money. When the Telco's find the pain from the wrath of people like you and me costs them more than they make from the bandwidth the ISP's pay for - then they will stop it.
This is also true of overseas connections.
Consider the position of a large company like AT&T. If they have 5 million angry customers phoning each day to bitch about spam from say Korea how will they react? One solution is for them to tell say their Korean counterparts to clean it up or they will be disconnected. Yup - most of us can live without Korea for instance being part of the net. But Koreans cannot.
So it is simply a matter of upping the anti so to speak.
When the cost of accomodating the shit exceeds the money they get from it then they will take action - not before. It is well within the control of the Telecommunications industry to eliminate the spam.
The simplest way is to require each adn every customer to sign an agreement that prohibts UCE and require them to agree to a penalty of say several $1000 bux is the create UCE. This can be on the visa cards of those who pay via Visa ot it can be by way of a deposit or a pledge of assets. Get the deposit in place - then when they send it out pinch the deposit. End of problem.
ISP's will catch on really quickly. Terms of service agreements already prohibit UCE. These just need to be enforced.
It is a simple problem to solve but again - why would any company take this problem on when people just bitch among themsleves?
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This is true of Hacked servers too. The ISP I use to go through is Cadvision and those idjots were so bad that they didn't even bother to pull the plug on customers hacked with Code Red. They didn't even tell them. In fact when I phoned up Cadvision they blamed me for complaining. I told them I'd sic the cops on them for a denile of service attack. You see - the idjot factor is really high.
You get annoyed and click the unsubscribe link (if you're stupid enough), they know your e-mail address is actually read by a real person, they sell your e-mail address on one of those CDs a fair proportion of spam advertises, profit!!!.
If it's HTML mail with images in, and your mail client knows too much HTML (::coughOutlookcough::), downloading the image will confirm that your e-mail address is real, if the spam mail's set up right.
Politicians only respond to two things ONLY.
1) big campaign donations 2) huge numbers of voters bitching constantly about the issue*
* this means ALL the time, not this week!!!
I tried to sue a spammer once. I talked to a lawyer for a while but the problem is that I couldn't prove much as damages.
Yes, they abused my resources and my bandwidth that I pay for but even if they sent 100 duplicate messages, that's such a small fraction of the bill that it's not worth trying to sue them.
I get a lot of spammers that send between 5-20 duplicate emails to @mydomain.com and I have a catchall setup, it pisses me off to no end that spammers can't go through their lists and clear off all 'root' and 'webmaster' and 'info', 'billing', 'support', etc. accounts off their lists.
Now I'm using SpamPal but that doesn't solve the problem, it just keeps it from being as annoying for me.
The man who trades freedom for security does not deserve nor will he ever receive either. - Benjamin Franklin
Here's another article about a $2 trillion class action lawsuit based on violation of the junk fax law, in effect since 1991. I suspect - but cannot confirm - that a true anti-spam federal law would prompt suits similar to this one. After all, one you ban something and create a statutory violation penalty, lawyers have an incentive to invest in the lawsuit based on the likelihood of success.
A theory I would like to see developed is that operating an open relay poses a public nuisance and that it you have your access yanked at will. More importantly, a complantant can compel your access to be yanked. That wouldn't kill spam, but it may have a significant impact on the joe jobs.
One way to do this is to set up an easily accessed test for being an open relay - you could use any of the existing ones, or create a new one. If you're a sysadmin, you're expected to test your own site after every configuration change, software update, etc. If you don't and somebody else does, you get a record of every failure... as does a public record. You then have some reasonable time to close the relay, say 10 business days, and then each and every person who receives spam through your open relay can get statutory damages of, oh, $250. Enough to make it worthwhile to pursue the matter in small claims court.
The Free Speechers will point out that there are, rare, valid reasons for running an open relay. Fine... but if you do that then you need to take some effective steps to ensure that spam doesn't get through the relay, only that rare legitimate OR material.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
Sueing spammers, or ISPs, or those whom spam advertises is a waste of time (and money). Various theories have been tried. None have worked. The principle reason is because spam is, by law, considered commercial free speech. Sorry folks. That's the real world, not our geek utopia. As such, it is protected by the constitution. Read Missouri v. Blastfax. Because spam has already been found to be contitutionally protected free speech, any law restricting spam (or used in a case to try to restrict spam) must pass what is called the "Central Hudson test." One must prove that the government (via law) has a "substantial interest" in protecting the public from the offense. In order to prove that, you have to prove substantial harm or potential harm. Good luck. For example, it used to be illegal for tabacco companies to advertise in certain cases and lawyers to advertise at all... because the gov't was supposedly protecting the public. However, BOTH of those restrictions have since been overturned. Can you prove spam more harmful than cigarettes or ambulance chasers? The so-called anti-fax law has been determined in court to be unconstitutional. Why would anyone think it could work for spam? Examples of other approaches: 1) theft. Do the math. Spam costs the recipient maybe $20 a year, and that's if you are getting ripped off by your ISP. Not "substantial." Your time is irrelevant. Suing for theft of your time is like suing the guy who wrecked his car and made you sit in traffic for three hours. 2) suing your ISP. You have a contract with your ISP, you can only sue for breach of that contract. Do you really think your ISP is going to leave the contract open to that? 3) intentional affliction of emotional distress - try to prove intent here. They claim ignorance and you're out legal fees. 4) unfair trade practices - these laws are pretty cut and dried. You'd have to prove the spam was either fraudulent or misleading. Some spam might fall into this category, but not much. The only possible legal remedy for spam is a no-call sort of opt-out system. However, in states where no-call laws exist for telemarketing, they have not been effective at detering telemarketing calls.