Slashdot Log In
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.
from the federal-law-means-they-can-spam dept.
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.'"
Related Stories
[+]
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.
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
May these judges get nothing but v14gr4 spam (Score:3, Insightful)
Re: (Score:3, Informative)
You see, it's not like a truck...
Re: (Score:3, Funny)
Hey, don't blame me - I sent them an email . . . oh!
Important Because (Score:2, Informative)
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.
Basica
Re:Important Because (Score:5, Insightful)
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.
Re: (Score:2)
Re:Important Because (Score:5, Interesting)
Re:Important Because (Score:5, Interesting)
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)
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*
Re: (Score:2)
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
Here's what I don't understand... (Score:5, Interesting)
Re: (Score:3, Informative)
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)
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)
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)
..of course it does. (Score:5, Informative)
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.
Re: (Score:2, Informative)
Re:..of course it does. (Score:5, Insightful)
Re: (Score:2)
Re: (Score:3, Insightful)
Misquote of the statute (Score:5, Informative)
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.
Re: (Score:3, Insightful)
His Honor (Score:2)
Re: (Score:2)
J. Harvie Wilkinson III - what a surprise... (Score:5, Informative)
Basically, the 4th circuit is an incredibly hostile place for "the little guy" when challenging a big business.
-Isaac
Re: (Score:2)
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
Re: (Score:2)
Re: (Score:3, Insightful)
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 ex
Irony (Score:3, Funny)
RICO (Score:2)
Is It Defamation ? (Score:2)
And isn't spam any unsolicited e-mail? How this didn't violate CAN-SPAM is amazing. Like to
"In response to your email. (Score:5, Interesting)
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.
Re: (Score:2)
Re: (Score:3, Insightful)
Don't bother emailing the judge (Score:3, Insightful)
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.
Spamalot (Score:2)
Federalism (Score:4, Insightful)
so much for federalism (Score:4, Informative)
Re: (Score:2)
Re: (Score:2)
I think stock related spam is now the singularly most annoying t
Re: (Score:3, Funny)
Re: (Score:3, Funny)
Re: (Score:2, Offtopic)
Re:duh (Score:5, Interesting)
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)
Re: (Score:2, Interesting)
Re: (Score:3, Funny)
Re: (Score:2)
Re: (Score:3, Funny)
Many would argue that use of "procede" is perfectly cromulent.
Re: (Score:3, Funny)
Perhaps he got his Un1v3rsi+y d3gRe3 online, too...