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Spam The Courts IT

California Spam Law Upheld By Appeals Court 58

Posted by samzenpus
from the but-I-don't-like-spam dept.
www.sorehands.com writes "In the first California appeals court ruling (pdf), in Hypertouch v. Valueclick, it is ruled that the I-CAN-SPAM Act does not preempt California Business & Professions Code Section 17529.5. California Business & Professions Code Section 17529.5 prohibits the use of falsified headers and subject lines that are likely to mislead recipients. Spammers have been claiming, and some courts have been ruling, that to survive preemption, a Plaintiff has to show all the elements of fraud (false representation, knowledge, reliance, and damage from the reliance.) The reliance and damage from the reliance is difficult as it would essentially require the recipient to buy the penis enlargement pills and show that they don't work, or to send the money to the Nigerian prince. An ISP could never show reliance and harm, as they are not the recipient and would not be responding to e-mails traversing their systems. The ruling also made it clear that the advertiser is responsible for the acts of their agents, even if their agents promise not to spam."
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California Spam Law Upheld By Appeals Court

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  • by Kenja (541830) on Wednesday January 19, 2011 @07:24PM (#34934552)
    So can you actually prove that your p3n15 did NOT get bigger?
  • by dave562 (969951) on Wednesday January 19, 2011 @07:36PM (#34934626) Journal

    Our elected representatives actually got it right for once. They crafted legislation that holds the advertisers and beneficiares of spam accountable for the spam itself. It only took them a decade plus, but this is the government we're talking about here. The fact that they got it done is to be lauded.

    • by X0563511 (793323)

      "The wheels of justice grind slowly but exceedingly fine..."

    • The ones in California did. The national ones completely fucked it up, and it took the courts (ie, not our elected representatives) to fix it.
      • It took Plaintiff's fighting the spammers in the Courts and keeping the judges from being bamboozled by spammers attorneys.

      • California's laws often lead the way simply because it's hard to do anything nationally or internationally without becoming subject to its regulations and laws. How easy is it to spew out spam without some of it going to California email addresses? Not very, I should think.
        • by icebike (68054)

          On the other hand, it seems doubtful a bankrupt state will pursue a spammer beyond its borders.

          This might stop spam originating is California. But realistically, how much actually originates from any easily identifiable location other than Aunt Sally's powned windows machine?

          • by Anonymous Coward

            If I understand correctly... Advertisers being held responsible for their agents' spam also means taht any company operating in California can't spam / tell their agents to spam, regardless of where the servers are or who get the spam. So it's pretty much "No company that has any kind of ties to California can employ spam in any way"!

            As for the bankrupt state... I don't know how these things work for you in the USA but if the state can fine the spammers large enough amount, this seems exactly like what a ba

    • by troll -1 (956834)
      There are already plenty of laws for false advertising and laws don't stop spam, filters do. This is another example of lawmakers choosing easy targets to convince voters they're actually doing something. Having failed repeatedly year after year to pass a budget they somehow find enough resources to waste time writing Section 17529.5.
      • by dave562 (969951)

        Now that the law is on the books it is up to plaintiffs to get the job done. The lawyers and representatives can only take us half way. It is in our hands to go the rest of the way. Do you really care about spam? Are you ready to do something about it? You have the law, and legal precedent on your side. What else do you need?

    • by icebike (68054)

      Holds the advertisers accountable?

      Well, maybe.

      Peeking out from under my tinfoil hat I've always suspected Pfizer of being behind the pill-spam and the dodgy pharmacies that have sprouted up to mail all the Viagra.

      To the extent it actually is Viagra, it had to come from somewhere, and Pfizer has to know that the places it is shipping to couldn't possibly consume that much.

      Some how I doubt the investigation will ever get close to them.

  • The ruling also made it clear that the advertiser is responsible for the acts of their agents, even if their agents promise not to spam.

    YES!

    Don't like it? Then don't get into email advertising. How's them apples?

    • by SharpFang (651121)

      I still wonder, what if:

      "Someone is trying to damage good name of our respectable company by sending spam mail in our name. This lawsuit itself is a proof this strategy works. We don't know these people, they are located somewhere in China, and working on behalf of parties we were unable to discern but we suspect they are associated with our competition."

      No written contracts, no paper trail, just anonymous transactions based on number of purchases from referral links. Hard to trace, hard to pinpoint the sou

      • It's a big risk. If you get away with it, your company gets some extra sales (maybe). If you get caught - maybe an disgruntled employee agrees to testify to your involvement - then you have a potential prison sentence for perjury on top of the corporate fines for spamming.
  • If California's law outlaws spam, then are current spammers able to insure that their messages aren't going to California? Or is it that the government isn't interested in spammers and only a few (very, very few) individuals have ever won a judgement against a spammer?

    The problem is that unless you are willing to invest a significant portion of your life to the pursuit and persecution of a spammer, it is all meaningless. California's Attorney General's Office isn't going to take on spammers. A judgement

    • by Telvin_3d (855514) on Wednesday January 19, 2011 @08:07PM (#34934860)

      No, but if I understand it right a big portion of this law allows both the state and ISPs/others to sue the businesses actually being advertised by the spam. It makes it harder for legitimate companies to hire spammers or advertisers that uses spammers and then wash their hands of the consequences. And any company that is profitably selling things (even spammy things) to US citizens almost has to have a US presence which means they are fair game.

      • Welcome to the new age of economic warfare.

        Step 1: Pay a spammer to advertise your competitor.
        Step 2: Organize a class action lawsuit against your competitor.
        Step 3: ???? (well actually laugh when your competitor is ruined by the verdict)
        Step 4: Enjoy your monopoly.

        • by artor3 (1344997)

          Step 5: Get caught by investigators
          Step 6: Get sued for eleventy billion dollars by competitor
          Step 7: Get forced into resignation by directors of your company.
          Step 8: Retire with a golden parachute of $50 million.

          Hey, if you're in the position to make this sort of decision, you can never lose. Seriously though, you would be caught, because your competitor would insist they weren't paying the spammers, an investigation would confirm it, and eventually it would get traced to its source. Especially if you we

          • Investigation? And who is going to investigate the Russian/Nigerian,.... spammers/botnet operators?
            Since the whole thing would be a civil trial, you force your competitor to spend a lot of money chasing down ghosts all over the world, leaving him with less money to mount a defense.
            And even if/when you find the spammers - what are you going to do? Arrest them and have them extradited to the US and force them to testify? Your only leverage would be money - bribing them for more then your competitor.
            In the end

      • It also makes it quite easy for less-than-legitimate companies to hire spammers to advertise their competitors' product.... I wonder if the Cialis folks are behind all the Viagra spam....

    • You are incorrect. (Score:5, Interesting)

      by www.sorehands.com (142825) on Wednesday January 19, 2011 @08:49PM (#34935152) Homepage

      In Silverstein v. Liquid Minds et al. BC340643 and BC351414, I not only obtained two judgments, but I collected on them. In Silverstein v. Liquid Minds, BC375173, I was able to seize their domain names, before that judgment was vacated. The judgment was vacated as a result of the perjury of their attorney, John DuWors. He, in their motion to vacate default, stated under oath that he had personal knowledge of, and the defendants corporations were unrelated, and that Defendants never received service of that or any of the prior lawsuits. These six Defendant corporations, Dev8 Entertainment, AXS Charge, Liquid Minds, East Group, Techie group, and Datatime Ideas Limited, were in fact run solely by David Szpak and Emmanuel Gurtler. The lies put forth by John DuWors were contradicted by the testimony of Emmanuel Gurtler at deposition -- that they received prior lawsuits, but decided not to defend them, that it was just Gurtler and Szpak running the companies, that they created East group and Techie Group to avoid the Visa fraud detection/chargeback mechanisms.

      Actually, the California AG did take on one spammer, Optin Global. But it was in conjunction with the FTC. http://www.ftc.gov/os/caselist/0423172/0423172.shtm [ftc.gov]

      • by nomadic (141991)
        Did the Court make a finding of fact that he had in fact perjured himself? It's not perjury that he swore to something that was wrong, it's only perjury if he did it knowingly.
        • NO, the Court just ignored it so far. However, he stated he had personal knowledge of those facts. If he did not have knowledge of those facts, then it is perjury when he swore to have personal knowledge of those facts.

          • by nomadic (141991)
            Personal knowledge is not necessarily correct knowledge. Let's say I think I had a turkey sandwich for dinner last night. I'm remembering it wrong, though, and I actually had a slice of pizza. If I swear to those facts in a declaration/affidavit, I have personal knowledge of what I'm testifying about, but I'm not perjuring myself.

            In this case, it's possible that the lawyer never received service of the lawsuits and his clients told him they never received it. As for the "related company" idea, just b
            • You don't have personal knowledge when you are told by a person.

              Well, you might be right on the bit with common ownership, but when 4 of the companies share a bank account, when one company pays the expenses of 3 of the others, it is hard to say, "they are separate entities with separate assets and different business purposes" DuWors has a practice of making false representations to the Court, and in California, when you make representations in any signed filing, you are representing that there is factual

              • by nomadic (141991)
                Personal knowledge can come from many sources, including being told. It's entirely possible for an affidavit to be held legally insufficient because it's based on hearsay or because the affiant does not state the basis for their personal knowledge, it's another thing for it to rise to the level of perjury, which has very specific elements.
  • I know first-hand those augmentation pills don't work. Oh, wait, I mean...
    • by AJWM (19027)

      Interestingly* enough, there's a short story in the latest issue of Analog Science Fiction (April 2011, may not be on the stands yet but subscribers should have it) that considers exactly that. The title is "Small Penalties". The penalty is small per incident, but it adds up. Not that what happens in the story is ever likely to happen (it's the magazine's "Probability Zero" feature) but we can dream.

      (*Interesting to me, anyway, but then I wrote the story.)

  • If I'm running a mid size company and I hire an ad agency that gets paid for referrals (and it's a fly by night LLC), I'm really venerable now. I guess the anti-spam crowd will tell me not to hire a fly-by-night, but don't most successful businesses start that way? And how am I suppose to know?
    • by PacMan (15605)

      If I'm running a mid size company and I hire an ad agency that gets paid for referrals (and it's a fly by night LLC), I'm really venerable now. I guess the anti-spam crowd will tell me not to hire a fly-by-night, but don't most successful businesses start that way? And how am I suppose to know?

      If you realy were venerable [reference.com] then I would hope you would know better than to leave yourself vulnerable [reference.com] to a lawsuit by hireing dodgy contractors.

    • If I'm running a mid size company and I hire an ad agency that gets paid for referrals (and it's a fly by night LLC), I'm really venerable now. I guess the anti-spam crowd will tell me not to hire a fly-by-night, but don't most successful businesses start that way? And how am I suppose to know?

      Yes, that's the point. How about only hiring ad agencies with honest and well known reputations reputations, and doing a little research before you hire them.

      • by jriding (1076733)

        That is also why in your contract with your marketing agency (fly by night or not) that you say no spamming allowed and if that is broken, the contract has liability and penalties for the marketing agency. The purpose of that contract is so if you get sued for spamming then you pass those cost to the marketing agency that actually performed the action. It is all standard when dealing with a 3rd party vendor in business.

    • If you do this then you're actually the opposite of "venerable".

      Also, welcome to business! Any time you work with a "partner" or hire a contractor that works in your name you expose yourself to risk. It's YOUR JOB to make sure that the risk is acceptable to you. It's tot our, meaning a generic customers, problem if you hire some scummy "fly by night LLC" to do your online marketing and they expose you to a lawsuit with the way they conduct themselves in your name.

    • If you hire an employee, don't you check if they have a criminal record? You don't check their past employers? You don't check and verify references?

      David Szpak and Emmaneul Gurtler, decided not to check before hiring any affiliate, not even to check if they were on Rosko.

  • Hypertouch v. Valueclick

    Since I'm not going to read the article, I figured I'd guess which one was the spammer and which was the ISP based on the company name alone.

    Total fail.

  • by telekon (185072)
    Since my Gmail account is technically in Mountain View, can I sue for damages?
    • Re:so... (Score:5, Informative)

      by Joe Wagner (547696) on Wednesday January 19, 2011 @11:39PM (#34936314) Homepage

      I am not a lawyer, so this isn't legal advice, just my experience. I have sued a number of times (and won) in small claims court, including in Santa Clara County -- where Mountain View is located as it happens. I know of someone in Florida who files small claims spam cases in California and flies in for the hearing. Nolo Press has a great book dedicated to small claims court in California Incidentally, in California lawyers aren't allowed to represent clients in small claims cases, although they are allowed for the re-trial if the defendant appeals a loss. As far as collections goes, handily enough VeriSign is also in Santa Clara County. So rather than chase down a spammer in some far off state to collect, you can just threaten to go down the road and seize a non-paying defendant's business property i.e. their .com domain name if they don't pay.

      As the Nolo Press book [nolo.com] explains, you can file two $7500 small claims lawsuits a year and an unlimited number of $2500 suits. California law awards $1000 per illegal spam. Santa Clara county even has specific rules for filing two or more small claims cases at the same time. So for example I filed simultaneously two lawsuits both against the defendants for 8 spam each per lawsuit. The two cases were heard at the same time and ultimately I collected $16000 plus interest. (In the course of the cases I also raised $40,000 for Second Harvest and the Darfur Stove Project charities [stanforddaily.com]...)

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