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.

Comments

Partners bullshit...

[Fnkmaster]

All the opt-out list systems are just encouraging businesses to set up "partnerships" solely for the purposes of exchanging direct marketing data. I don't want calls from AT&T's "exclusive partner" in marketing baubles, trinkets and bullshit. I set up a business relationship with AT&T to provide me with phone service, period. If they call me to offer a new phone plan, fine, I can tolerate that, it's within the bounds of our business relationship. If their "exclusive partner" calls to offer me baubles, trinkets and bullshit ("exclusive promotional offer to sign up with suckourballs.com"), they can blow me.

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.

Two points of note

[eaolson]

The Sprint lawyer quoted in the article says, "The purported purpose of all these statutes is mainly to stop unsolicited pornography and scams." Funny, I thought the point of the anti-spam law was to stop spam, not porn.

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.

Re:Return it Right Back

[adzoox]

Very interesting LA Law style tactic. Good suggestion. A local to me tried something similar. He said that our local paper was invading his private space and trespassing. He claimed that the local paper delivery boy was doing nothing more than scouting the place out for late night heists of our condo property when delivering the weekly free sampler paper.

I believe the local court ruled similarly saying that, one person gets the paper and OTHERs at my place enjoy getting the weekly sampler so EVERYONE should have the benefit of the free paper and delivery to your door. The plaintiff, after losing delivers 50 weekly samplers to the door steps of the court house EVERY week now. About two weeks ago, the city filed a lawsuit for littering. He is claiming that a few people like the repository and actually pick up the paper to read and that a few people inside get regular delivery of the paper. The weekly sampler also includes the arrests listings for Greenville County, he's claiming "informational association" - it's been entertaining to watch.

Here is the scoop

[.....]

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.