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Suing spammers

I’m off to MAAWG next week and seem to have had barely enough time to breathe lately, much less blog. I have a half written post, but it’s taking a little more research to put together. That can wait until I get the chance to do the research.
Instead I thought I’d talk about the North Coast Journal article “The Rise and Fall of a Spam Crusader.” It’s quite an interesting article and looks into the personal and business sacrifices that people make in order to chase down spammers.
In my experience a lot of the serial litigators have very poor practices around data collection and analysis. They don’t collect evidence, they just collect email and then make assertions and assumptions. This not every effective when having to convince a judge that you are right.
The article actually does nothing to change this impression. The cases ASIS won are the cases where the defendants didn’t respond. That also means that ASIS couldn’t collect.
I do disagree with Mr. Singleton, the lawyer, where he says CAN SPAM is dead. In many cases I’ve seen there aren’t clear CAN SPAM violations. So if he’s trying to sue these spammers under CAN SPAM his cause of action is wrong. Secondly, the article goes on to talk about the broader implications.

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CAN SPAM preemption of CA law

The California court of appeals returned a ruling yesterday in the Hypertouch v. ValueClick case. This is a case I haven’t talked about at all previously, but I think this ruling deserves a mention.
The short version is that Hypertouch sued Valueclick in 2008 under both CAN SPAM and the California anti-spam law. Eventually the judge in the case ruled that there was no clear evidence of fraud, therefore CAN SPAM preempted the California law.
Hypertouch appealed the case.
Yesterday the appeals court published their opinion and kicked the case back down to the lower court.

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What Happens Next…

or Why All Of This Is Meaningless:
Guest post by Huey Callison
The analysis of the AARP spam was nice, but looking at the Mainsleaze Spammer Playbook, I can make a few educated guesses at what happens next: absolutely nothing of consequence.
AARP, if they acknowledge this publicly (I bet not) has plausible deniability and can say “It wasn’t us, it was an unscrupulous lead-gen contractor”. They probably send a strongly-worded letter to SureClick that says “Don’t do that again”.
SureClick, if they acknowledge this publicly (I bet not) has plausible deniability and can say ‘It wasn’t us, it was an unscrupulous affiliate”. They probably send a strongly-worded letter to OfferWeb that says “Don’t do that again”.
OfferWeb, if they acknowledge this publicly (I bet not) has plausible deniability and can say ‘It wasn’t us, it was an unscrupulous affiliate”. And maybe they DO fire ‘Andrew Talbot’, but that’s not any kind of victory, because he probably already has accounts with OTHER lead-gen outfits, which might even include those who also have AARP as
a client, or a client-of-a-client.
So the best-case result of this analysis being made public is that two strongly-worded letters get sent, the URLs in the spam and the trail of redirects change slightly, but the spam continues at the same volume and with the same results, and AARP continues to benefit from the millions of spams sent on their behalf.
I’m not a lawyer, but I was under the impression that CAN-SPAM imposed liability on the organization that was ultimately responsible for the spam being sent, but until the FTC pursues action against someone like this, or Gevalia, corporations and organizations will continue to get away with supporting, and benefiting from, millions and millions of spams.
As JD pointed out in a comment to a previous post: sorry, AARP, but none of us are going to be able to retire any time soon.

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