Slashdot Mirror
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.
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.
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.