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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.
Do you think that AudioGalaxy connects to all its partners in real time when it comes to sharing email addresses? If they generate a list for their partners every week, for example, wouldn't it make sense that it also takes at least a week to get off the list? I'm against spam but I'm also for common sense. Which this guy didn't seem to have when he gave permission to be emailed in the first place.
This was clearly outlined in paragraph 7 of page 83 of the AudioGalaxy Terms of Service. It's right below the paragraph outlining the rights to your lungs in case of death by bear mauling. I don't know you could miss it, it was in huge 1pt print.
What does it matter if you opt-out of a mail list?
Once you've opted in, the third party can then sell your address again and you then have NO way of tracking it around.
Unless a system identical to the national "Do-Not-Call Registry" can be established for email addresses, there's not a damn thing you can do about spam in relation to opt-in/opt-out lists.
For those who don't know this already, all that does is validate that there is a user who actively checks/reads that email account. A list of valid email addresses is VERY valuable to other spammers, who eagerly shell out the $$$ so they can send you MORE spam.
So in reality "Opting out" often will only bring you MORE spam, not less.
There's a Mercedes gap too. I want one and can't afford one, but it's not government's job to do anything about it.
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.
You have to give telemarketers 30 days to remove you from their lists when you ask. I dont see how online spam should be different.
If you opt in, and then later opt-out, and get an e-mail 2 days later, I don't see it as some great evil. You shouldnt have opted in in the first place.
You all need to chill pushing for all these spam laws, regulating the internet is a bad thing in the end. Do you really want your real name and SSN tied to your e-mail account for the sake of ending spam? (Because thats about the only solution the government will come up with).
Beef up your filters and accept it.
I don't need no instructions to know how to rock!!!!
Unless you use sneakemail. Whenever I encounter a webform where it seems like I need to provide a valid email address, e.g. to recieve a tracking number or an initial PIN code or some such thing, I just pull up sneakemail, create a new address, label it with the date and the party who is getting the initial address (March 14 03, audiogalaxy).
That way, if audiogalaxy sells that address to someone else, not only do I know where that someone else got my address from and (approximately) when it must have happened, but (and this is the important part)
I CAN CUT THEM OFF
Sprint can send as many emails as they want to the address from audiogalaxy... that address is no longer valid, because sneakemail let me kill it.
yes, i'm a paying subscriber, and i've been using it for about 2 years now.
Humpty Dumpty was pushed.
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.