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First CAN-SPAM Lawsuit Filed in California
rocketjam writes "Foster City, California-based ISP Hypertouch, Inc. has filed the first lawsuit alleging violations of the new Federal CAN-SPAM Act of 2003. The lawsuit was filed against BobVila.com and the spammer they hired, Bluestream Media, for sending Hypertouch customers unwanted, unsolicited email advertisements for Vila's "Home Again Newsletter." The suit alleges the defendents sent spam email ads with fraudulent headers and no physical address. It also alleges the emails were sent to randomly generated and harvested addresses as well as addresses that had replied to opt-out links in other spams. Hypertouch's attorney, John L. Fallat, said the CAN-SPAM Act offers little protection to the public, but they would use the few protections it offers to punish spammers." Reader Clemence links to Wired's coverage of the suit.
General article on Bob Vila's ebiz
One line blog. I hear that they're called Twitters now.
So for any spam that has a forged header or a misleading subject, California's new law, with the $1000 per spam penalty, will still apply. California allows private suits in small claims court by any party. So you can haul the bozos into court. Maybe even across state lines.
A year or two from now, we'll be rid of the chickenboners, but we'll be getting even more spam from "legitimate businesses".
So I'm a pervert. Welcome to the Internet.
One of the most compelling aspects in deciding to file this case was that among the various emails messages in their spam run they managed violate nearly every ISP-actionable part of CAN-SPAM. Specifically various email of the spam run had one or more of the following violations:
1) No street address
2) False headers, including
a) SMTP HELO's with names whose IP addresses don't match the originating IP
b) Domain names used in the headers that were registered with false names...
3) Addresses that had been submitted to the opt-out mechanisms of other spam
4) Random and harvested addresses, include domain registration contact addresses.
One of the biggest problems with CAN-SPAM Act that we are hoping to educate the press so they can inform the public is that the Act says end users _must_ contact each spammer and opt-out. This is of course exactly the opposite of what ISPs have been tell their customers to do. "Opting out" merely gives the spammer have a live address. Some of the email addresses defendants sent spam to were unique addresses submitted to a "virus software 90 % off" spam. In no uncertain terms, "opting out" of spam signs you up for more spam.
We were surprised when even after we told BobVila.com about the quality of the lists their hired spammer was using, they still refused even just to promise they'd never use BlueStream Media again... Right before we filed the action, one of our users received a new BobVila spam, this time sent through a Florida based spammer.
Yeah, he does exist and that is his real name. However, his association with home improvement is purely a creation of television.
He was a nobody until a PBS series called This Old House came along in 1979. He was hired as the host of that show. His job duties there were to read the opening and closing sequence lines, and to interview the experts who really did know what they were doing. He was not one of those experts, he was just asked questions to the experts.
In 1989, when he left This Old House, he created his own TV production company, and used his association with home improvement to get endorcement deals. His primary sponsor is Sears, and his Home Again series can more or less be seen as a Sears infomerical at times. (Sears has always been a title sponsor, and controls a large chunk of the ad space within the program. The content portion of the show might not hit you over the head as an ad, but notice the clear bias when it comes time to select which company's products to work with.)
His primary line of work these days isn't as a home improvement expert, it's in being the pitch man for Craftsman tools and other Sears brands. He'll endorse other products too, but that's really the only skill people pay him for. You never see him doing any of the work on his TV shows, and that's for good reason...
In many states, there were laws that made using false headers a violation of that state's laws. In addition many states have advertising laws which require the advertiser to be identified.
Fight Spammers!
This is in part why the This Old House Classics that run on commerical channels are only from the post-1989 seasons after Vila left the show, the first 10 seasons are something WGBH would rather forget.
Vila was not hired because he knew about construction. He was hired because he looked credible, and could speak well to the camera. He was the host of the show, and that's it.
It appears that one of BlueStream Media's customers is also in Foster City, DrySkinOnly.com... Small world. The local DA is taking complaints about spam, though you have to get through a disinterested police force. If you have any pre-2004 spam that has no ADV label, that is punishable under the old CA law by up to one year in jail. If you have the time and energy, file a complaint and follow up on it...
No, in civil lawsuits you go after everybody who has any relation to your problem. Unrelated people will be dropped from the suit by the judge. The reason for that is simple: it's very easy to remove someone from the lawsuit, but next to impossible to add one. So you begin with the widest audience.