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.'"

Comments

May these judges get nothing but v14gr4 spam

[Anonymous Coward]

and rot in hell...

duh

[hyperstation]

anti spam "activist"? wow, some people have really fucked up priorities. who cares?

Re:Important Because

[Kadin2048]

What's unfortunate in this case is that the activist has said that he's not going to appeal the decision due to lack of funds.

Currently there is a conflict between various state and Circuit courts as to whether the CAN-SPAM act overrides stricter State laws regulating unsolicited email. The only thing that's going to resolve the issue is a ruling from the USSC, barring further legislation to clarify the issue. If this guy were to push on, he could conceivably bring it before the Supreme Court and get a real decision; more importantly, he'd probably concentrate enough media attention on it so that even if the decision were to go in favor of the spammers, it might make a tougher anti-spam law a campaign issue in the national arena. Right now, the spammers win if people don't make noise.

forward spam

[Anonymous Coward]

In that case, I guess the judges shouldn't object if we forward our spam to them.

Re:..of course it does.

[Atlantis-Rising]

Well, of course. If you think the law is wrong, then obviously there's a problem- but that doesn't make the ruling bad.

Don't bother emailing the judge

[00Dan]

I know a few of you will probably say "What's the judges email address, let's get him some spam"

It will not work. The judge probably has the best spam filter money can buy- an assistant that prints off legitimate emails for him to read, or deletes spam every morning for him.

That's true for just about anyone who is involved in legislation that can stop spam. Except for their home email account, they are probably ignorant of what the real world is like.

Re:..of course it does.

[whoever57]

That strikes down the application of Oklahoma's law, which the judge ruled ...is not limited to inaccuracies in transmission information that were material, lead to detrimental reliance by the recipient, and were made by a sender who intented that the misstatements be acted upon and either knew them to be inaccurate or was reckless about their truth.

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.)

Well, the judge appears to have ignored part of the law, which states:

`(a) IN GENERAL- Whoever, in or affecting interstate or foreign commerce, knowingly--
..
`(3) materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages,

The fact that the contact information was in the email is immaterial. The sender violated the plain text of the act.

Re:Important Because

[ScentCone]

I am not saying we shouldn't try to keep US companies from spamming but to think that spam will be greatly reduced because a mojority of the US has strict laws against it I think is just wishful thinking.

You know what? I'd have better luck and less stress if I was ONLY trying to filter the stock pumping spam. If the people selling fake V1@gra, fake Rolexes, and fake everything else - all of the stuff that requires you to visit a web site and present payment - were taken down, it would hugely reduce the noise level. But more importantly, it's a matter of principle. Some fights are worth it, just because it sets a more civilized tone to overtly care about it and act with justice in mind that to just put up with it and decide that it will always be part of your life.

I agree that there needs to be a protocol change or two. But there is a LOT of inertia behind good old SMTP. And I'd rather null-route every packet from Romania, and lose the occasional piece of legit mail, than give in and say that some spamming asshat who happens to live there can litter me and all of my users with his trash. *blood pressure up*

Federalism

[Metasquares]

The 4th Circuit may have laid waste to all of those efforts.

IMO, the court is blameless here; they're doing their job and federal laws do tend to trump state ones. It's the CAN-SPAM act that laid waste to those efforts.

Re:J. Harvie Wilkinson III - what a surprise...

[isaac]

I take it, then, that you disagree with the court's interpretation of federal law?

Yes. CAN-SPAM explicitly permits individual states to "prohibit falsity or deception." In my initial reading, this court conjures up a "materiality" requirement where none exists in statute, effectively saying that forged headers aren't examples of "material" falsity or deception because there's no detrimental reliance on same. The court totally ignores the fact that this type of deception is designed to bypass filtering (upon which many rely).

To be fair, the district court found that these errors were "immaterial" - such a determination being only relevant to this case. Judge Wilkinson essentially gutted the one area where CAN-SPAM explicitly permitted state regulation by holding that not only would "immaterial errors" henceforth not incur liability under CAN-SPAM in the 4th Circuit, but that CAN-SPAM preempts state law in the case of forged headers in plain contradiction to the clear language of the statute (US Sec 7707(b)(1)):

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.

What part of this unusually clear language requires "material" falsity or deception? Talk about "activist judges."

-Isaac

Re:"In response to your email.

[Phroggy]

People like you make spam harder to fight. Please stop.

Re:..of course it does.

[Atlantis-Rising]

Let me guess, you're a anarcho-capitalist who believes that a world without government will be magical and sparkling and Ayan Rand would have been elected in 1952 and visted the lunar colony before flying around the world on her fusion-powered dirgible the next year, right? (the Probability Broach, in case you were wondering- apparently a seminal work in libertarian fiction.)

The fact is, there's no real evidence the court is corrupt. I think that's quite a significant jump, and you'll need to provide me with proof of that. Sure, it's made a lot of mistakes, and even so it's more conservative than I'd like, but corrupt? I'm not willing to go that far.

Frankly, the fact is that the court exists to interpret the constitution and oversee it's implimentation. As I can't see any particularly glaring errors in it's interpretation, your "not the type of commerce wich the text refers too" nonwithstanding, (because it's unfounded and irrelevant), it's interpretation stands until altered by a higher court.