Update on Tulsi Gabbard sues Google

Back in July the Tulsi Gabbard campaign sued Google for deactivating their “advertising account” on the night of the first Democratic debate. I’ve been waiting for the Google response, which was due to be filed today.

icon of a gavel

I checked today and found a new filing. Apparently counsel for both sides got together recently and decided that Tulsi’s campaign was going to submit an amended complaint and so Google could hold off any answer until that had happened.

We can expect a first amended complaint consisting of a single claim for violation of the first amendment by September 27, at the latest and then Google has until October 18 to respond.

If you’re interested in seeing the court document, most of the interesting ones are available through the Court Listener website: https://www.courtlistener.com/docket/15967487/tulsi-now-inc-v-google-llc/. I’m adding any docs I purchase there (as are other folks, I’ve not bought all of them) so you should be able to follow along, at least until any email related counts are dropped.

Speaking of email related court cases, I spent more than a few hours yesterday going down the rabbit hole of United States v. Bychak. This was brought to my attention by Brian Krebs and some friends on Facebook. Brian’s article is well worth a read as it details some of the things that spammers do in order to get around IP based blocking.

I’ll write a little more about what they did and how this kind of IP based hijacking was funded by many large international companies.

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Unsubscribe means unsubscribe

But, unfortunately, some senders don’t actually think unsubscribe means stop sending mail.
Today, for instance, the nice folks at The Container Store sent me an email with an “important update to my POP! account”

Yes, that’s an address I gave them. But I don’t have any record of setting up an account. I was on their mailing list for all of 4 emails back in November 2016 before unsubscribing. But, they’ve decided they can email me despite my unsubscribe request.
They’ve cloaked this as an “Important Account Update” about some account I don’t have. In fact, when I go to their website and try and see what this oh so important account is about they tell me:


I understand legitimate account notifications might be an acceptable excuse to send mail even after the recipient opted out. This, however, was done extremely poorly. There is no record of the account that they are sending me information about. Neither the company nor I have any record of this account of mine.
At a minimum the emails should have only be sent to the folks that actually had an account. But, they weren’t.
I also have some issues with a company requiring recipients to accept email in order to continue using reward points. As a recipient, if I wanted what they were offering I might go ahead and continue receiving emails. But, I might not. It would all depend on how aggressive their email program is and how good the rewards are. As a deliverability consultant, this strikes me as a great way to create a mailing list full of unengaged users. Unengaged users lead to spam foldering and eventual failure of an email marketing program.
Whatever some executives think, and having been in this industry for a decade and I half I’m sure this is coming from the top down, this is not a good way to build an email program. You really can’t force folks to accept your email. ISPs are too protective of their users to make that a viable strategy.

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Want some history?

I was doing some research today for an article I’m working on. The research led me to a San Francisco Law Review article from 2001 written by David E. Sorkin. Technical and Legal Approaches to Unsolicited Electronic Mail (.pdf link). The text itself is a little outdated, although not as much as I expected. There’s quite a good discussion of various ways to control spam, most of which are still true and even relevant.

From a historical perspective, the footnotes are the real meat of the document. Professor Sorkin discusses many different cases that together establish the rights of ISPs to filter mail, some of which I wasn’t aware of. He also includes links to then-current news articles about filtering and spam. He also mentions different websites and articles written by colleagues and friends from ‘back in the day’ discussing spam on a more theoretical level.
CNET articles on spam and filtering was heavily referenced by Professor Sorkin. One describes the first Yahoo spam folder. Some things never change, such as Yahoo representatives refusing to discuss how their system works. There were other articles discussing Hotmail deploying the MAPS RBL (now a part of Trend Micro) and then adding additional filters into the mix a few weeks later.
We were all a little naive back then. We thought the volumes of email and spam were out of control. One article investigated the effectiveness of filters at Yahoo and Hotmail, and quoted a user who said the filters were working well.

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Techdirt lawsuit settled

Back in 2017 Techdirt wrote a series of articles about Shiva Ayyadura. Shiva claims he invented email. (narrator voice: he didn’t). I wrote about the lawsuit when it was dismissed on First Amendment grounds. The parties cross appealed, and have been in settlement talks for 18 months.

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