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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?"
On the contrary. From the analyses I've read in news.admin.net-abuse.email, and my own observations, it seems at least half the major spammers - the ones with easily recognized patterns, styles, and quirks - are based in the US, but use foreign resources for their campaigns. 90% of the spam I'm getting now is originating from foreign open proxy servers, mostly in APNIC and RIPE ip space, which shows that spammers are now getting more cunning about covering their email tracks. They're also using foreign "free webhosting" services for their web content, but as you go through it all, it's evident that a lot of them are American, by their vocabulary, their pitches, addresses (er, PO boxes) and phone/fax numbers, etc.
Such practices of using open proxies and free anonymous web hosting may be advocated by the free-speech party, but I don't feel it's free speech anymore when the sole purpose of hiding their identity is to avoid punishment for NON-free-speech related crimes, as well as having a purely commercial, rather than political or editorial, purpose.
Luckily, all this effort goes to prove that they KNOW what they're doing is wrong, and jumping through hoops to avoid being caught. It makes it that much easier to prosecute them once they're identified and caught. Unfortunately, finding them is the hard part.
In the meantime, the best we can do is help the government in THEIR fight against spam and scams, by forwarding all your spam - WITH HEADERS - to utc@ftc.gov
They've found and prosecuted several high-profile scammers and originators of pyramid schemes, and they notify the SEC about stock price manipulation schemes done in large spam campaigns.
I wonder if there is any precedent for that? Courts usually have a tough time making such a leap from penal statutes which don't directly address a specific electronic infraction. Remember, too, that we would be dealing with 51 sets of criminal theft statutes, as well. Take Texas, for example. Compare statutory theft to statutory theft of services. Now, I think we all know that when these statutes were drafted that the authors did not envision spam as it didn't exist at the time of the drafting. There's just no way. The defense attorney would be able to convincingly argue that legislators did not envision these types of offenses and thus they are not covered under the statute. That is why this enterprise is so perilous when we attempt to argue by analogy (i.e. pursuing spammers under junk fax laws) or couch electronic offenses into the statutory language of pre-Internet penal statutes.
Remember, that some courts are still struggling with initial hurdles of authentication and admissibility [PDF] of electronic email and web data. My favorite such quip from a federal judge (from my own state of Texas):
The PDF link is to an article I wrote earlier this year on that very subject. See also the Siddiqqui case for the application of the rules of evidence to e-mail. The point: How can such a jurist be convinced to apply pre-digital laws to spammers? That is the question.jd
Was it that you yourself couldn't prove actual damages at all, or that you could not prove enough damages so that he could recover a large enough fee to cover his own expenses/cost?
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.
This, I think, is why any suit against spammers would have to be a class action suit. Recall that class actions are typically used when a large number of individuals' rights have been violated by defendant's course of conduct but the cost of vindicating those rights is too great, as no one is going to file a lawsuit to recover a mere pittance in damages. However, if you agglomerate all of those claims, it becomes worth the attorneys time and the threat of an enormous verdict frightens the defendants. This is why most class action lawsuits settle if the plaintiffs attorney successfully certifies the class. Of course, the converse of that is that the class action joinder rule can take a relatively frivolous individual claim that an attorney would not pursue and convert it into a lucrative and dangerous claim with a potential for high recovery. But that really isn't a concern in this context, as these claims would not be frivolous, especially if we are dealing with a spammer who has misappropriated one's identity.