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4th Circuit Court Sides With a Spammer
bulled writes to tell us about coverage on CNet regarding a ruling a couple of weeks back that allows a spamming company to procede with their suit against a spamfighter. The 4th Circuit court ruled that the U.S. CAN-SPAM Act, much derided here, trumps the Oklahoma law under which anti-spam activist Mark Mumma sued Omega World Travel for spamming him. The ruling allows Omega World Travel's countersuit, for defamation, to go forward. From the article: "'There's been a lot of activity in the states to pass laws purportedly to protect their citizens' from spam, said Eric Goldman, a law professor at Santa Clara University. 'The 4th Circuit may have laid waste to all of those efforts.'"
FTA
This ruling could prove to be a setback for other antispam activists for one major reason: It suggests that, thanks to the Can-Spam Act, state laws prohibiting fraudulent or deceptive communications won't be all that useful against junk e-mail.
Basically, as far as i understand it, states will have a much harder time of protecting their citizens from spam.
"No doubt one may quote history to support any cause, as the devil quotes scripture." - Learned Hand
is quoted. That strikes down the application of Oklahoma's law, which the judge ruled
And then, the judge ruled that it didn't violate the CAN-SPAM act (The apellant, mummagraphics argued that the senders of the e-mails mislead mummagraphics as to the origin of the message, when the judge pointed out that it was a marketing e-mail- hence, it had all sorts of links and phone numbers and stuff to contact the people who had sent it.)
With all that established, the appellants had no case.
There's nothing fundamentally wrong with this, unless you have a problem with the doctrine of preemption- and if you do, that's a much, much larger issue than just spam e-mail.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
J. Harvie Wilkinson III wrote this opinion in the 4th circuit. He's Reaganite authoritarian on the most "conservative" appellate bench in the country. You might remember him as the brave patriot who upheld the right of the executive branch of the US Government to indefinitely detain any US Citizen with no access to counsel, court, or any legal process to challenge that detention.
Basically, the 4th circuit is an incredibly hostile place for "the little guy" when challenging a big business.
-Isaac
I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.
I think because civil courts deal with "liability" not "responsibility" (that's criminal).
Regardless of you being in the right, you still owe the other party for court/other costs. See also: OJ
The people who care are the mail system administrators. Last week my company got 7000 email messages, of which 5500 were rejected at the first level mail handler and about half the remainder were still spam. I have to let that much through to prevent false positives.
This doesn't include the dictionary attacks (15000 last week) or hacking attempts (54).
The cost in my time is hours per week in updates and security checks.
The well-named federal CAN SPAM law explicitly preempts state and local laws to allow spamming, so the Oklahoma law was already superceded. By providing a way to reach them and a working opt-out link, Omega met the low bar set by CAN-SPAM. The fact that you would have to be crazy to click on an opt-out link in a spam email didn't matter to Congress, and matters even less to a judge interpreting Congress' intent.
The point is: complain to Congress about the bad law, not the judiciary who have to play the hand that they're dealt.
Intron: the portion of DNA which expresses nothing useful.
That's a deceptive misquote of the statute, which actually reads
This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.
The judge then took a narrow view of that language. His reading of the CAN-SPAM act is that "falsity or deception" above must rise to the level of a tort, and that the false information must constitute a "material deception". He then looks at the language of the CAN-SPAM act's criminal provisions, which prohibit the initiation of a "transmission to a protected computer of a commercial electronic mail message if such person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message". Applying that language to divine the intent of Congress, the judge then rules that deceptive material in a spam e-mail must be believed by the recipient, and about a material fact, to be actionable.
Now, given the facts in this case, that's not totally unreasonable. The e-mails bore a return address of "cruisedeals@cruise.com", which was non-functional. But the messages were, in fact, advertising "cruise.com" and were in fact initiated by the operators of "cruise.com". So this is not an anonymous spammer.
This is key. The CAN-SPAM act protects spammers who properly identify themselves. (Those are today routinely caught by spam filters.) That was the clear intent of Congress, based on lobbying by the Direct Marketing Association. There was no willful obfusication by the sender here; it was clear that "cruise.com" was behind all this.
This decision doesn't provide any relief for anonymous spammers and scammers.
These are the same judges who probably send internets to their staff and complain because the tubes are all cloged.
You see, it's not like a truck...
as I have said many times, america is over