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Spam is in the eye of the deleter February 26, 2007

Posted by grhomeboy in Advertising, Internet.
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Some e-mail marketers complain that filtering technology used by Internet service providers unfairly segregates opt-in commercial e-mails as spam. Some disputes between marketers and spam registries have wound up in court.

Everyone hates spam. But like the canned meat product it’s named after, it’s hard to say exactly what it is.

Pharmaceutical come-ons? Sure. Nigerian bank gambits? Of course. But what about junk mail from well-intentioned nonprofits? Or mass mail you may have actually asked for at some point? Or marketing mail that lets users opt-out of future messages?

“There’s no legal definition,” says Danny O’Brien, a spam law analyst for the Electronic Frontier Foundation. “Spam is in the eye of the beholder.”

That ambiguity has become a problem for some activists who try to root out and stop spammers from clogging e-mail boxes. Call a mass marketer a spammer these days, and you may end up in a legal minefield, accused of damaging legitimate businesses by using the “S-word.”

When the Spamhaus Project, an organization devoted to cataloguing the Internet’s most prolific spammers, placed marketer e360insight on a spammer “blacklist” in November 2003, the result was a $25 million lawsuit.

E306insight founder David Linhardt says his Wheeling, Ill.-based marketing should never have been on Spamhaus’ Registry of Known Spamming Operations, which is used by government agencies and some Internet service providers to filter out spammers. He says since his company landed on Spamhaus’ list, it has been blocked from 4 million e-mail accounts, and has lost more than $3 million in revenue.

Linhardt sued Spamhaus in June 2006, and won a judgment from a federal court a few months later calling on the anti-spam group to pay $11.7 in damages. But Spamhaus, which is based in England, refuses to acknowledge U.S. jurisdiction in the case. Steve Linford, the group’s chief executive, claims his organization has already spent more than $40,000 successfully defending U.S. lawsuits.

Until a legal definition is set, it will likely face more. Linhardt says that his company only sends e-mails to customers who express, and later confirm, their wish to receive them. But Linford says his group’s blacklist only punishes “serious spamming professionals.”

Yet Linford acknowledges that the murky definition of spam is a problem for his group. “We define spam as unsolicited bulk e-mail,” he says. “But there are many different definitions. If you ask a spammer, of course, they’ll simply define spam as, ‘That which I do not send.’ “

But someone is sending them. Spam levels more than doubled in 2006 and spam accounted for more than 94% of all e-mail, according to research by the message management company Postini.

Joining with anti-spam organizations to fight this growing spam-storm is Mark Mumma, another controversial player in the legal battles over mass e-mailing. Mumma, an Oklahoma City-based Internet service provider and self-proclaimed “anti-spam zealot,” runs more than 50 Web sites and claims to receive more than 8,000 spam e-mails daily.

A few years ago, Mumma began suing spammers for violating federal and state anti-spam laws. “I was determined to be paid for the time I’d wasted,” he says. He won settlements totaling around $7,500, and created a Web site, Sueaspammer.com, to tout his victories.

In 2005, Mumma received 11 marketing e-mails from Cruise.com, a travel Web site. He threatened to sue Cruise.com’s parent company, Omega World Travel, for spamming him, and posted comments on his Web site calling the company a “spammer.”

Omega beat Mumma to the punch, suing him for defamation in federal court and asking for $3.8 million. Labelling the company a spammer, Omega’s lawyers claimed, unfairly damaged the reputation of both Omega and Cruise.com. “If you call someone a spammer and they’re not, you’re taking your chances,” says Jim Hodges, an attorney who represents Omega.

In response, Mumma followed through on his threat and sued Omega, but lost his case when a federal judge ruled that Omega’s marketing e-mails hadn’t been misleading enough to qualify as illegal spam. Omega’s defamation case against Mumma is ongoing.

“Apparently,” says Mumma, “I can’t call a spade a spade without getting dragged to court.”

Even writing about the topic can be a tricky business. Last month, Time magazine wrote a story about the dispute that characterized Omega as “spammers.” Omega’s lawyers were able to convince the Time Warner-owned magazine to run an apology noting that “the company’s e-mails had complied with federal anti-spam laws.”

Hodges, Omega’s attorney, argues that the company has never sent unsolicited e-mail. Though he admits that Cruise.com’s e-mails used a third-party domain name that may have confused Mumma’s spam filter, he points out that Mumma could have clicked an opt-out link in the message to avoid receiving more messages.

Mumma calculates that if he were to take 10 seconds opting out of every unsolicited e-mail he receives, he’d spend 23 hours and 44 minutes a day going through his spam folder.

“I’d have to hire three people full-time, working in shifts,” he says.

By Mumma’s count, he’s more than $50,000 in debt thanks to his legal battles, and still faces bankrupting penalties in the defamation suit. But his anti-spam mission continues. He’s created another Web site, 2bucksamonth.org, to solicit donations from supporters in his battles against spam.

“If I somehow manage to get $150,000 in donations a month,” he promises, “I’ll sue the hell out of all of them.”

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