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4th Circuit Court Sides With a Spammer

Posted by kdawson on Tue Nov 28, 2006 02:52 PM
from the federal-law-means-they-can-spam dept.
Spam Government The Courts News
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.'"
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[+] Can-Spam Increased Spam 362 comments
andy1307 writes "According to New York Times, spam has actually gone up [Free registration required. You gave real info, right?] since the CAN-SPAM act went into effect. There is a graphic in the article that illustrates this increase. Before the CAN-SPAM act was passed, spam was about 60% of all e-mail traffic. Now it's 80%. In a we-told-you-so quote, Steve Linford, the founder of the Spamhaus Project, says CAN-SPAM legalized spam by giving bulk advertisers permission to send junk e-mail as long as they followed certain rules. Slashdot covered this story last year. For companies that offer offshore "bulk advertising" servers, business is booming. A survey from Stanford University estimates the global cost of spam in terms of lost productivity to be at 50 billion $ and 17 billion $ in the US alone. CAN-SPAM does give prosecutors some leverage to go after the merchants - but it must be proved that they knew, or should have known, that their wares were being fed into the illegal spam chain. " The BBC has a related story talking about rates of spam, viruses, and scam mail.
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  • May these judges get nothing but v14gr4 spam (Score:3, Insightful)

    by Anonymous Coward on Tuesday November 28 2006, @02:55PM (#17022518)
    and rot in hell...

    • Re: (Score:3, Informative)

      by binaryspiral (784263)
      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...

  • 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.

    • 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.
      • Right now, the spammers win if people don't make noise.
        Or rather, given the way these things seem to work, "the spammers win if people who can afford to don't make noise".

    • Re:Important Because (Score:5, Interesting)

      by 0x537461746943 (781157) on Tuesday November 28 2006, @03:07PM (#17022756)
      But how can a state protect you from spam when the problem is really global where the state and US laws don't always apply? Even if all the states came up with some extremely strict spam laws it would just push spammers to other countries and they would still end up using spam bots from around the world. As long as there is email there will be spam. All we can do is deploy the best spam fighting techniques we can around our mail servers to reduce it.

      • Re:Important Because (Score:5, Interesting)

        by ScentCone (795499) on Tuesday November 28 2006, @03:17PM (#17022960)
        But how can a state protect you from spam when the problem is really global where the state and US laws don't always apply?

        The real key is to follow the money. For spam recipients in the US, most of the pitches are for goods/services that US consumers will hopefully by talked into buying. If the businesses that will transact the money are in the US, or have ties to people in the US, that's something to go for. If the pitches are for outright fraud (say, phishing, or the sale of bogus meds), then you've got a good case to take to law enforcement in whatever country is harboring the scammers. Sure, that isn't always helpful... but recall the recent article discussing how some companies (like Microsoft) are helping to fund the local PDs as they pass that research and evidence along to those other countries. It can't hurt.

          • Re:Important Because (Score:4, Insightful)

            by ScentCone (795499) on Tuesday November 28 2006, @03:59PM (#17023750)
            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*

      • Even if all the states came up with some extremely strict spam laws it would just push spammers to other countries...

        So if all the spammers move to Indonesia, that fact can at least be used as another factor to improve spam filtering. I don't receive a lot of legitimate e-mail from Indonesia. And hey, if Indonesia has a problem with having their country's e-mail filtered strictly by the rest of the world, then they can can crack down on spammers themselves.

        You're right, laws without the ability to enfo

  • Here's what I don't understand... (Score:5, Interesting)

    by SeekerDarksteel (896422) on Tuesday November 28 2006, @03:04PM (#17022702)
    If he sued a company under an existing law, and a court later found that a federal law outweighed the state law, how can the person suing possibly be held responsible? How can it be considered his responsibility to know the judgement of the circuit court before he even filed the case in the first place?
    • 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

    • Re:Here's what I don't understand... (Score:5, Informative)

      by Intron (870560) on Tuesday November 28 2006, @03:44PM (#17023446)
      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.

      • Re:Here's what I don't understand... (Score:4, Interesting)

        by sribe (304414) on Tuesday November 28 2006, @06:24PM (#17026398)
        The well-named federal CAN SPAM law explicitly preempts state and local laws to allow spamming, so the Oklahoma law was already superceded.

        Read the article more carefully. CAN SPAM explicitly allows for state laws dealing with "falsity or deception in any portion of a commercial electronic mail message." But this judge decided that a falsified header and return address were "immaterial errors" and that a strict reading of that portion of CAN SPAM was "not compatible with the structure of the Can-Spam Act as a whole." In other words, strained rationalization of the result the judge wished to reach.

  • forward spam (Score:3, Insightful)

    by Anonymous Coward on Tuesday November 28 2006, @03:05PM (#17022714)
    In that case, I guess the judges shouldn't object if we forward our spam to them.

  • ..of course it does. (Score:5, Informative)

    by Atlantis-Rising (857278) on Tuesday November 28 2006, @03:10PM (#17022818) Homepage
    Read the judgement- there's almost no question in my mind- this case was extremely clear cut. On page six, quoted is the Can-SPAM act in which


    This chapter supersedes any statute, regulation, or rule of a state or political subdivision of a state that expressly regulates the use of electronic male to send commerical messages...

    is quoted. 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.)

    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.

    • Re: (Score:2, Informative)

      by kidtwist (726601)
      There's nothing wrong with the ruling except that, as someone says in the article, it "vindicates those of us who view Can-Spam as pointless and potentially dangerous legislation."

    • Read the judgement- there's almost no question in my mind- this case was extremely clear cut. On page six, quoted is the Can-SPAM act in which

      This chapter supersedes any statute, regulation, or rule of a state or political subdivision of a state that expressly regulates the use of electronic male to send commerical messages...

      Oh yeah? What about the use of electronic female? That's not even addressed in the statute, and I suspect that many of us use eletronic female very often.

    • Re: (Score:3, Insightful)

      by whoever57 (658626)

      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 mummagraphic

    • Misquote of the statute (Score:5, Informative)

      by Animats (122034) on Tuesday November 28 2006, @03:56PM (#17023700) Homepage

      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.

              • 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 wit
  • I wonder if Judge James Harvie Wilkinson III would be interested in letting me deposit sixty millions of American dollars into his bank accout for my deceased Nigerian prince brother while increasing the size of his manhood and curing any desease.
    • Not unless you allow him to invest the proceeds in all those hot Stocks in Play that are ready to explode/take off/blow up or whatever else they're going to do.

  • J. Harvie Wilkinson III - what a surprise... (Score:5, Informative)

    by isaac (2852) on Tuesday November 28 2006, @03:12PM (#17022866)
    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
    • The only catch is that... anything done in the 4th Circuit only applies to the 4th circuit.

      In other words, if you sue someone in the 5th Circuit, based on some State SPAM law & the defendant doesn't bring up the same objection... you get to win.

      Though I can't imagine any Spammer *not* using this logic in the future.
    • I take it, then, that you disagree with the court's interpretation of federal law?

      • Re: (Score:3, Insightful)

        by isaac (2852)

        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

  • Irony (Score:3, Funny)

    by Cauchy (61097) on Tuesday November 28 2006, @03:13PM (#17022882)
    Ironically enough, when I read the article, and advertisement for www.cruise.com, the spammer in question, appeared at the bottom of the page. I wonder how many people will read this article and then feel inspired to shop for a cruise from them?
  • I can't understand why spammers aren't prosecuted as organized criminals. They hijack other people's computers as a business.
  • Is it defamation if it's posted as an opinion? Something like, "Hey, in my opinion this looks like spam to me. What do you think?" Aren't opinions protected?

    And isn't spam any unsolicited e-mail? How this didn't violate CAN-SPAM is amazing. Like to see this go to the SCOTUS.

  • "In response to your email. (Score:5, Interesting)

    by Anachragnome (1008495) on Tuesday November 28 2006, @03:35PM (#17023286)
    .....I have come to the decision to NEVER do business with your company, nor any of its subsidiaries. Your decision to utilize a means of advertising at the expense of consumers highlights the general business attitude your company has taken. Further emails to me will only reinforce this opinion, and quite possibly trigger a public effort, on my part, to make known to as many consumers as possible, via the internet, and any other means available to me, that your company is taking part in illegal activities (email advertising) at the expense of the very customers you are trying to do business with."

    I send this to as many spam adverts as I can. I simply cut and paste the exact same reply. And NOT to the address contained in the advert. I look up the SALES dept. address and send it to THEM. In EVERY instance I have done this, the mails stopped.

  • Don't bother emailing the judge (Score:3, Insightful)

    by 00Dan (903094) on Tuesday November 28 2006, @03:39PM (#17023376)
    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.

  • For some reason my business email which I rarely use started getting carpet bombed with spam a few weeks ago. I get up to fifty emails a day in the bulk folder and some in the main folder. I'd ignore the bulk folder but since it's primarily for business half the needed emails ends up in the bulk folder and I have accidentally deleted good emails. The odd thing is I have a personal email with the same service that gets maybe half a dozen a day. I rarely give out my business one but they got the address off s

  • Federalism (Score:4, Insightful)

    by Metasquares (555685) <<slashdot> <at> <metasquared.com>> on Tuesday November 28 2006, @04:14PM (#17024028) Homepage
    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.

  • so much for federalism (Score:4, Informative)

    by drDugan (219551) * on Tuesday November 28 2006, @05:50PM (#17025862) Homepage
    as I have said many times, america is over [slashdot.org]
    • I was getting a bunch of these for a few days. The text was just some random "story" that started mid sentence. I just kept having gmail send them to the spam folder. I guess it has learned now because I don't get them in my in-box anymore.
      • Yes, I was getting about 20 or 30 of these a day until I updated my filters in Thunderbird (since seemingly the junk mail settings in TB had some sort of learning disability with this one.)

        I think stock related spam is now the singularly most annoying thing out there.
        • This doesn't work in most cases, since your friends aren't usually going to quote C. S. Lewis at you. Therefore, anything which sounds like classical literature is spam.
    • Try modding these messages down next time, and you might get less of them...

    • Re: (Score:2, Offtopic)

      by ScentCone (795499)
      I've been seeing untold thousands of "XXXXX wrote:" through and blocked, both. They are all coming from desktop-looking IP addresses, so it's a bot army, methinks. Today, they were from Greece, the UK, some from the US, but the largest number were from Asia. Yes, started about a week ago. That, and a flood of messages with a reply-to that always starts with "debora[h]" and a domain name that looks scraped from industrial manufacturing lists somewhere. In other words, just another day in spamland. At least i

    • Re:duh (Score:5, Interesting)

      by ScentCone (795499) on Tuesday November 28 2006, @03:07PM (#17022746)
      anti spam "activist"? wow, some people have really fucked up priorities. who cares?

      You could say the same thing about people who breed cats, clean up highway trash, attend scifi conventions, babble on slashdot, attend soccer matches, or obsess about their particular pet Linux distro. At least this guy's passion happens to involve punishing people who cost the economy billions of dollars in lost productivity, bandwidth, and resources.

    • Re: (Score:3, Informative)

      by Anonymous Coward
      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.

      • Re: (Score:2, Interesting)

        by Anonymous Coward
        before we get into a pissing contest about what company does what... i work for a major metro hospital. we are currently deleting about 65000 messages every 12 hours. this is stuff we consider obviously spam through a quite sophisticated algorithm. 65000 represents 86% of our email. now, ask me again why this matters.
          • Even better, you should tell them. Say to them "I am going to disable the spam filter for you for one week. At the end of the week, come back and tell me you don't think the filter works."
    • Don't bother. None of the editors around here have even seen a dictionary, let alone realize that "procede" doesn't exist in any of them.
      • Don't bother. None of the editors around here have even seen a dictionary, let alone realize that "procede" doesn't exist in any of them.

        Many would argue that use of "procede" is perfectly cromulent.
    • the judge took the spam companies offer to help him enlarge his penis.

            Perhaps he got his Un1v3rsi+y d3gRe3 online, too...

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