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4th Circuit Court Sides With a Spammer 154

Posted by kdawson
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.'"
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4th Circuit Court Sides With a Spammer

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  • by Anonymous Coward on Tuesday November 28, 2006 @03:55PM (#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...
  • Important Because (Score:2, Informative)

    by gt_mattex (1016103)

    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.

    • by Kadin2048 (468275) <slashdot...kadin@@@xoxy...net> on Tuesday November 28, 2006 @04:04PM (#17022706) Homepage Journal
      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.
      • by Fred_A (10934)
        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".
      • by Rick17JJ (744063)

        Perhaps some computer users organization should start a "Fight the Spamers" fund drive to pay for his legal bills, if he is interested in such an offer to help continue the fight. There are enough people out there who are fed up with spam that a "Fight the Spamers" legal aid fund might be feasible. I would be willing to contribute if it is clear that a well know responsible organization is supervising the collecting of funds.

        In important legal fights like this, I would hope that there might be some organ

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

      by 0x537461746943 (781157) on Tuesday November 28, 2006 @04:07PM (#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: (Score:1, Funny)

        by powerlord (28156)
        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?


        Oh, thats easy. ... Newt Gingritches new "Great Wall of Bureaucracy
      • Re:Important Because (Score:5, Interesting)

        by ScentCone (795499) on Tuesday November 28, 2006 @04:17PM (#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.
        • But do you really think they can be tracked down that easily? For an example... some of the spam is just stock pumping scams. There is no direct contact mentioned in the emails and trying to track them down when they are relayed through multiple spam bots will probably prove not very useful escpecially if some of the end points end up in countries that could care less about US laws. Even if we could locate and prosecute half of them(Which I don't think will ever happen) more will just pop up as others di
          • by ScentCone (795499) on Tuesday November 28, 2006 @04:59PM (#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

        • by idontgno (624372)

          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.

          Unfortunately, even if every spammer moves to Indonesia, they're not relocating their rented botnets to Indonesia. Sorry, no magic bullet there; the spams will continue to originate from a random worldwide assortment of pwn'd business servers in Europe, bulletproof hosters in China, and clueless lusers' trojanized home PCs on US bro

      • by T3CHKNOW (1012327)
        Yeah, shoot to kill.
      • This is an American law served in America and only involving Americans. Sure you can't expect to police the world but we were told we had a law to protect us and now it's failed.

        I usually hate to abdicate vigilantism but it looks like the law was written to protect criminals and I can see why when I look at the number of lawmakers on their way to prison. Maybe its time for real justice? Good advise might just be that if you find a spammer save yourself the trouble and just sneak up on them and blow them awa
      • 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?
        exactly, the only way to stop this is to buy my new SPAM-B-GONE for $9.99
      • Legislation doesn't work in this case!

        The only solution is a free-market solution. Better filtering, blacklisting, etc etc. The free market will sovle the problem eventually because unless we turn the ENTIRE WORLD into a police state, there is really no way to stamp it out.
    • by Thuktun (221615)
      Folks were predicting this kind of outcome at least three years ago, before it was even passed by Congress.

      http://groups.google.com/group/misc.legal.moderate d/msg/0c4b9f6ca950fed8 [google.com]
  • by SeekerDarksteel (896422) on Tuesday November 28, 2006 @04:04PM (#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?
    • Re: (Score:3, Informative)

      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
    • by Intron (870560) on Tuesday November 28, 2006 @04:44PM (#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.
      • I dunno, it's tough to argue with the decisions of a high court...if you've got an argument you can appeal after all.

        Sounds to me like a lame law being faithfully upheld by the judiciary...to the deteriment of the people.
        • by sfjoe (470510)
          Sounds to me like a lame law being faithfully upheld by the judiciary...to the deteriment of the people.

          Which is exactly what the judiciary is supposed to do. People who use the term 'activist judges' to deride judicial opinions they don't like obviously have no understanding of the US legal system. It's not up to the juduciary to decide whther or not a law is 'lame'. Their job is to interpet laws. In some instances they can strike down all or part of a law for running counter to a superior law (the Constit
      • by sribe (304414) on Tuesday November 28, 2006 @07:24PM (#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.
        • by Intron (870560)
          I did read the article. Although cruise.com was in the From line and was not the actual source of the message, the cruise.com domain does in fact belong to Omega Travel, so where is the falsity or deception?

          whois cruise.com

          Registrant:
          Omega World Travel
                3102 Omega Office Park
                Fairfax, VA 22031
                US
  • forward spam (Score:3, Insightful)

    by Anonymous Coward on Tuesday November 28, 2006 @04:05PM (#17022714)
    In that case, I guess the judges shouldn't object if we forward our spam to them.
    • by cdrudge (68377)
      Only if you have your contact information at the bottom so that he can request, and ignored, to be removed from the mailing list.
      • by brouski (827510)
        Only if you have your contact information at the bottom so that he can request, and ignored, to be removed from the mailing list.
        Ignored? There's someone at the other end reading that mail! That address just tripled in value! Yeehaw!!!
  • allows a spamming company to procede with their suit against a spamfighter

    Really? Why? Is the spamfighter bald? [procede.com]
    • by scdeimos (632778)
      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.
      • Re: (Score:3, Funny)

        by User 956 (568564)
        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.
  • ..of course it does. (Score:5, Informative)

    by Atlantis-Rising (857278) on Tuesday November 28, 2006 @04:10PM (#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."
      • by Atlantis-Rising (857278) on Tuesday November 28, 2006 @04:31PM (#17023232) Homepage
        Well, of course. If you think the law is wrong, then obviously there's a problem- but that doesn't make the ruling bad.
        • by jrumney (197329)

          Amendment X - Powers of the States and People. Ratified 12/15/1791. Note

          The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

          Now, I'm no expert on the US constitution from my position as an outside observer, but I wasn't aware that Federal law could trump State law in this regard. Does the consititution explicitly allow the government to pass laws protecting spammers?

    • 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

    • by Animats (122034) on Tuesday November 28, 2006 @04:56PM (#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.

  • 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.
  • by isaac (2852) on Tuesday November 28, 2006 @04:12PM (#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
    • by TubeSteak (669689)
      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.
      • by DoctaWojo (654967)
        It's not "get to win," it's "might have a chance of winning."
      • by jrockway (229604)

        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.


        What happens if the suit is filed in a Circuit City? *groan*
    • by chazzf (188092)
      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 @04:13PM (#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.
    • by RoboRay (735839)
      "I can't understand why spammers aren't prosecuted as organized criminals."

      I can't understand why more of them aren't simply shot.
      • Because they haven't committed any capital offenses.
        "In most places that practise capital punishment today, the death penalty is reserved as a punishment for premeditated murder, espionage, treason, or as part of military justice."
        http://en.wikipedia.org/wiki/Capital_punishment [wikipedia.org]
        • by wheelgun (178700)
          He mentioned shooting. I saw nothing about execution by the state.
          • by RoboRay (735839)
            Correct. I was referring to certain events in Russia on how to properly "reward" a spammer for his efforts.
            • Personally, I'd rather have Spammers around than the Russian Mafia - Spammers can be blocked by filters while the Russian Mob requires bulletproof glass and teflon to block.
              • by Dunbal (464142)
                Mob requires bulletproof glass and teflon to block.

                      You can't stay behind your bulletproof glass forever. When you come out, we'll be waiting.
  • 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.

    • It's a sticky area of the law. The statement "Bush is an idiot" will always be protected opinion. The statement "In my opinion, Mr. Smith is a nasty pedophile" will never be protected as opinion (though it may be OK for other reasons). Simply adding the phrase "in my opinion" to a statement that is essentially a fact, offers no protection. Courts look at a number of factors to see if a statement is opinion or fact, including context, whether the statement is capable of a provable or unprovable meaning (
    • And isn't spam any unsolicited e-mail?

      No, spam is unsolicited broadcast email.

      Every time you send mail to someone you've never sent mail to before, that's unsolicited email.

      Unsolicited broadcast email. Broadcast means it's bulk. More than that, broadcast means it's indiscriminate - real email from your bank telling you about a new branch isn't spam, they're your bank, they have a relationship with you... but the same message from a competing bank, sent to the same mix of people who are largely NOT their cus
  • The judge wouldn't want to endanger his primary source of r0ga1n, v1agra and c!a1is now, would he?
  • by Anachragnome (1008495) on Tuesday November 28, 2006 @04:35PM (#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 you mean unsolicited email advertising? I like some of the online deals I get emailed, from those I subscribed to.
      • by mojodamm (1021501)
        Yeah, I can see it now, "Really honey, I'm only looking through these porn sites to find the sales department!"
      • by jrockway (229604)
        Heh, sometimes I subscribe to these things and then realize that I didn't want them. Instead of figuring out how to unsubscribe, I just report them to spamcop instead. Much easier.
  • by 00Dan (903094) on Tuesday November 28, 2006 @04:39PM (#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.metasquared@com> on Tuesday November 28, 2006 @05:14PM (#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.
    • Especially when those federal laws explicitly state that they preempt state law. Noting the opinions here, it seems the old saying rings true, "an activist judge is any judge whose rulings you disagree with".
  • We need to set up mist net [wikipedia.org] throughout the homes of spammers, and put them out of our misery. A bounty on spammers seems the only way to solve the problem. :)

    We cannot claim the reward unless we have 51% of the carcass! —Apu

  • by drDugan (219551) * on Tuesday November 28, 2006 @06:50PM (#17025862) Homepage
    as I have said many times, america is over [slashdot.org]
  • Ok everyone - get on the phone and call the company and advise them there is a boycott and they may lose some business over this.

    They need to be hit hard where it hurts, right in their pocket book.
    • by argent (18001)
      You expect a *spammer* to give a damn about that?
      • Yes I expect a spammer to care.

        They are running a business in a competitive environment. The reason they were spamming is they were trying to increase business. Many businessmen do not see spamming as being significantly different than advertising. Remember commercials have been shoved down the throats of the TV watching public for decades. So why should folks think a computer is all that much different than a TV? Ie... if they can get away with it they will.

        A boycott mind you may get their attention a
        • by argent (18001)
          Yes I expect a spammer to care.

          I used to, back in the '90s. I used to contact the businesses referenced in the very few spams that I got that seemed to be for real non-scam products. At first, I got pretty good responses, but after a while it seemed that the remaining businesses that were still spamming knew exactly what they were were doing and what it cost in terms of lost sales, and just counted that as part of the cost of doing business.

          On the other hand... it's been five years since I've had time to mi

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