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First Test of Utah Anti-Spam Law Dismissed
fwoomer writes "Apparently, Utah feels that once you've 'opted-in' you can't opt back out as fast as you've opted in. From the story: 'Gillman requested removal on May 14, 2002, from the e-mailing lists his visit to Audio Galaxy a month earlier had linked him to. Two days later, he received a Sprint ad, and on May 28 he filed suit. The court found his attempt to have himself removed from the lists was insufficient to void the pre-existing business relationship.' If he was receiving spam in May after 'opting in' in April, I don't see how it could be unreasonable to expect to be removed from lists as fast as he was added. Unfortunately there's not much detail in this story. A good read, nonetheless." I don't see how signing up with Audiogalaxy establishes a business relationship with Sprint, but, whatever. Presumably some of the other lawsuits filed are against people that have no possible claim to the receiver opting-in.
If you opt-in, it's quite easy to put an entry to the data entry department. If you opt-out, you need someone who's trained to delete (which believe it or not, is a big deal in the data entry industry).
Pretty soon everyone in Utah is going to be getting spammed with extra wives.
:)
Well at least then the people in Utah will find a purpose for the "Add inches onto your member!" spam won't they?
Seriously though folks, this ruling can't be good for us, I hope the guy appeals, the last thing we need is precident for spammers.
The argument sounds a little on the weak side too, kind of like saying "You bought a car so you established a buisness relationship with Baskin Robins"... spam is not just spam people.
I agree with the comment; how does opting in for Audiogalaxy ammount to a Sprint ad?
I may be a member of the ASPCA; but I don't expect to receive credit cards in the mail as a result..
I, for one, am surprised to hear that the company actually has an "opt-out" policy. I thought that was just a link they put in SPAM to send you to another site where you'll be added to another mailing list???
"If I were punished for every pun I shed, there would not be left a puny shed of my punnish head." - Samuel Johnson
I plan on taking a stand against this personally by breaking off business relationships with companies that insist on sharing my data with their "exclusive marketing partners" and crap like that. I signed up for the Massachusetts State Opt-Out list for a reason.
Secondly, without using tagged addresses, how are we, as end users, supposed to know if we've "opted in" to receiving an email? (This assumes the email in question in this article was not sent by AudioGalaxy on behalf of Sprint, but by Sprint itself to a list it bought from AudioGalaxy.) For example, if I sign up for AudioGalaxy on Monday, they sell their list of addresses to Sprint on Tuesday, and Wednesday I get emails from both Sprint and MCI. The Sprint one is "legit," the MCI one is not, but there's no way to differentiate between them.
Apparently Paul doesn't have enough spam to really help him understand that spam is spam, regardless of wether it comes from a large "deep-pocketed" company, or a small time bedroom spammer.
Coincidentally, his email address is pcd@pwlaw.com
I usually just block it instead of opting out, but I've found that SO MANY TIMES when I try to opt out, their servers never seem to respond. Surprisingly, their opt-in servers never have the same problem.
What a load of junk.
Did the guy receive spam the day after he opted-in? The day after that? What if it didn't start for a week? Then why should he expect the opt-out to be any faster than that?
If you bother looking at the various state opt-out programs you'll see that they're handled quarterly - if you sign up for it on Dec 31 then you'll be opted-out starting Jan 1. If you sign up on Jan 1, however, you'll need to wait until the next time the list is distributed - usually Apr 1. The dates may vary, but it's almost always a quarterly schedule.
Now, admittedly, email is a bit of a different thing from traditional telemarketing or snail mail - you don't have the lead time involved in either of those and there's no way you can claim that your computer system doesn't have connectivity. I think that for spam it wouldn't be unreasonable for opt-in/out lists to have a maximum turn-around time of 24 hours (to allow distribution to partners - even connected systems aren't going to be instantaneous).
If the courts have decided that you've got a business relationship, could you send sprint employees mail as well with the message at the bottom which reads "This email is permitted under the terms of the court identying that Spring and ____ person have a business relationship."? Although it sounds very childish, is possible to throw it back in their faces?
The basic facts in the article are right: Gillman opted-in to GroupLotto's list to receive stuff, then some time later opted out. A day after he had opted-out, a received an email from Sprint, an GroupLotto "partner". Gillman sued.
Sprint moved for summary judgment on four grounds:
1. Sprint itself did not send the email
2. The email was sent unitentionally
3. Gillman had consented to receive the email
4. Gillman had a preexisting relationship with Audiogalaxy that made the email not "unsolicited."
The court decided as follows:
1. The law defines the spammer as either the sender, or the one who causes email to be sent. So Sprint is still a spammer.
2. This argument calls for a factual judgment, so it isn't appropriate to rule on as a matter of law.
Sprint basically said that it was GroupLotto's fault that it was sent -- Sprint only wanted to send to opted-in people. Thus the sending was unintentional. However, there are several issues about what the different parties obligations are, so this claim was rejected.
3. Sprints third argument was also not suitable for summary judgment. Sprint argued that at the time Sprint contracted with GroupLotto to send the email, Gillman was opted-in, and had therefore consented to receive the spam. This argument was partially based on a "two-to-three day" unsubscription time that Sprint claimed was standard -- Gillman could not have expected that he had opted-out until several days had passed. However, there was no such temporal disclaimer from GroupLotto, and it was granted that Gillman had unsubscribed by the time the email was actually sent. This issue of fact was unsuitable for summary judgment. Therefore, it is explicitly undecided if the fact that the email was "in the pipeline" when Gillman opted-out makes it spam or not.
4. For this argument, Sprint argued that Gillman had a preexisting business relationship that made the spam not "unsolicited." Unfortunately, they were right. The Utah law reads as follows:
"commercial email is not 'unsolicited' if the sender has a preexisting business or personal relationship with the sender."
The law makes no provision for discontinuing a business relationship. Thus, you have a "preexisting business relationship" with *anyone* you have ever done business with under the Utah law.
The judge noted that this is probably not what the legislature meant, but still, she was constrained to follow what they actually passed into law, not what she thought they meant.
There were a few other problems with the case, but that one flaw was enough to grant summary judgment.
I hate spam as much as everyone else, but I don't see how this can violate any law. If the User opted-in, which it appears he did, and then later opted-out, Audio Galaxy can't be expected to go around to everyone they sold his email address to and say "Hey, that email we sold to you before? Stop using it!" Audio Galaxy should stop selling his email address at that point, but that would have no effect on the apparent sequence of events here.
So every slimeball company would form a second company called "email address holdings [inc]" and immediately sell them your email address upon opt-in. From this point, even if you opt out, EAHI has full rights to keep spamming you and selling your address for ever?
I don't think anyone could sanely call that an opt-out.
Spam filters, certain ISPs, hotmail, etc, will often just delete mail, not bounce it. With no bounce, they just know it didn't bounce and will keep using that address. however, when you click the opt-out link, (or even open some emails that have images tied to dynamic pages) you just verified with 100% certainty that they have found a real, in-use, and monitored email address.
The truth doesn't care what I think.
For example, some of my web design and hosting customers pay me to send out their newsletters (strictly opt-in). Say company X sends me their newsletter and mailing list on Feb 25th to be mailed out on March 1st... if somebody decides to opt-out on Feb 28th, they're still going to get the March newsletter because I don't maintain the list.
I think it's only fair to give companies a few business days to sort things out in an opt-in/opt-out scenario, as outgoing mail may already be in a sense "queued".
Let me also head off any insistance that the large spam brokers be responsible for handling the opt-out requests and maintaining a live database: this service usually involves large setup fees, and the client may not want to get married to one spam broker right away... so they will often send a static mailing list for a one-time mailing instead.
I personally think it's rediculious that this article even found its way onto slashdot. For chrissake, it might have taken two full days or more to process a single LARGE mailing list if they are contending with SMTP flood thresholds at large ISPs with lots of opt-in subscribers. You can't just rapid-fire 10,000 emails to MSN accounts from one server and not expect to get your IP blocked! Infact, most companies even tell you when you opt-out that it may take a few days before you stop receiveing emails.
Now, watch me get modded down by the idealist slashdot spam nazis for having a potentially unpopular opinion.
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