Spam lawsuits: new and old

There’s been a bit of court activity related to spam that others have written about and I feel need a mention. I’ve not yet read the papers fully, but hope to get a chance to fully digest them over the weekend.
First is e360 v. Spamhaus. This is the case that actually prompted me to start this blog and my first blog post analyzed the 7th circuit court ruling sending the case back the lower court to determine actual damages. The lower court ruled this week, lowering the judgment to $27,002 against Spamhaus. The judge ruled that there was actual tortuous interference on the part of Spamhaus. In my naive reading of the law, this strikes me as not only an incorrect ruling, but one that ignores previous court decisions affirming that blocklists are protected under Section 230. Venkat seems to agree with me.

Spamhaus had a viable Section 230 argument here, but this argument got lost in the procedural quagmire. Section 230(c)(2) protects filtering judgments and insulates “action taken to enable or make available to information content providers or others the technical means to restrict access to material [that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable].” (See Professor Goldman’s post discussing Pallorium v. Jared, a California state appeals court case where the court held that a publisher of list of IP addresses for open relays could not be held liable. See also Zango v. Kaspersky.)

I do hope that Spamhaus appeals this ruling.
Second is Microsoft Corporation v. Mizhen et al. This is going to be an interesting case, I think. Microsoft is suing Mizhen, among others, alleging that he gamed Microsoft’s filters by opening up millions of Hotmail accounts and hitting “this is not spam” for his own mail.

The complaint details how Mizhen and his affiliates allegedly manipulated the statistics that Microsoft’s anti-spam system relies on by creating millions of new email accounts and then moving up to 200,000 of their own messages a day from “junk” files into inboxes.

This is actually the second time Microsoft has sued Mizhen. The first case was settled and Mizhen had to pay Microsoft $2,000,000 and promise not to spam MS users any longer, but I suspect that Mizhen may not get off so easy this time.

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Winning friends and removing blocks

I do a lot of negotiating with blocklists and ISPs on behalf of my clients and recently was dealing with two incidents. What made this so interesting to me was how differently the clients approached the negotiations.
In one case, a client had a spammer slip onto their system. As a result the client was added to the SBL. The client disconnected the customer, got their IP delisted from the SBL and all was good until the spammer managed to sweet talk the new abuse rep into turning his account back on. Predictably, he started spamming again and the SBL relisted the IP.
My client contacted me and asked me to intercede with Spamhaus. I received a detailed analysis of what happened, how it happened and how they were addressing the issue to prevent it happening in the future. I relayed the info to Spamhaus, the block was lifted and things are all back to normal.
Contrast that with another client dealing with widespread blocking due to a reputation problem. Their approach was to ask the blocking entity which clients they needed to disconnect in order to fix the problem. When the blocking entity responded, the customer disconnected the clients and considered the issue closed. They didn’t look at the underlying issues that caused the reputation problems, nor did they look at how they could prevent this in the future. They didn’t evaluate the customers they disconnected to identify where their processes failed.
The first client took responsibility for their problems, looked at the issues and resolved things without relying on Spamhaus to tell them how to fix things. Even though they had a problem, and is statistically going to have the occasional problem in the future, this interaction was very positive for them. Their reputation with the Spamhaus volunteers is improved because of their actions.
The second client didn’t do any of that. And the people they were dealing with at the blocking entity know it. Their reputation with the people behind the blocking entity was not improved by their actions.
These two clients are quite representative of what I’ve seen over the years. Some senders see blocking as a sign that somehow, somewhere there is a flaw in their process and a sign they need to figure out how to fix it. Others see blocking as an inconvenience. Their only involvement is finding out the minimum they need to do to get unblocked, doing it and then returning to business as usual. Unsurprisingly, the first type of client has a much better delivery rate than the second.

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Marketing to businesses

“If you do stupid things, you’re going to get blocked,” says Jigsaw CEO Jim Fowler in an interview with Ken Magill earlier this week.
Jigsaw is a company that rewards members to input their valuable business contacts. Once the addresses are input into Jigsaw, they are sold to anyone who wants them. Jigsaw gets the money, the people providing information get… something, the people who provided business cards to Jigsaw members get spammed and the people who downloaded the lists get to deal with a delivery mess. Sounds like a lose for everyone but Jigsaw.
Except that now Jigsaw is listed on the SBL for spam support services. Well, that’s going to cause some business challenges, particularly given how many companies use the SBL as part of their filtering scheme.
It’s hard to think of a situation where I would appreciate someone I gave a business card to providing my information to a site that then turns around and lets anyone download it to send email to. I know, I know, there are a million companies out there I’ve never heard of that have The Product that will Solve All my Problems. But, really, I don’t want them in my work mailbox. The address I give out on my business cards is, for, y’know, people to contact me about what I’m selling or to contact me about things they’ve already purchased from me. That address is not for people to market to. I have other addresses for vendors, and even potential vendors, to contact me.
Jigsaw clearly facilitates spam to businesses by collecting email addresses and then selling them on. This is a drain on small businesses who now have inboxes full of valuable offers to wade through. Perhaps their stint on the SBL will make them reconsider their spam support services.
HT: Al

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News snapshot

  • The judge in e360 v. Spamhaus has denied Spamhaus’ motion for dismissal. However, the judge also ordered that the 16 new witnesses be stricken and capped damages at the original $11.7M. Mickey has the order.
  • Tuesday the FTC announced it had shut down a major spamming operation. I am not sure the results are visible yet, yesterday there were 2041 spams in one of my mailboxes yesterday versus 2635 a week ago.
  • The FBI announced today it had infiltrated and shut down a international carding ring. While not directly spam related the phishers and carders work together and some of them use spam.
  • Rumor has it that many mailers are seeing problems delivering to AOL the last few days. It seems that AOL is making adjustments to their filtering system. As when any ISP changes filter rules and weights, some of the people just skirting by see delivery problems. What people are hearing is that if they are seeing delivery problems at AOL they need to improve their reputation.
  • Last week Yahoo had another online workshop with the mail folks. They have published a transcript of the talk. I was at the talk and there were only a couple spam related questions.

donhburger: Why does Yahoo sell our email addresses to spammers?
YMailRyan: We absolutely don’t sell your addresses to spammers. No IFs, ANDs, or BUTs about it.
imintrouble: My mom keeps emailing em but I never get it and usually it ends up in my spam box. Why? How do I make this stop? She’s getting pissed that I’m not replying.
YMailTeam: Oh no! Be sure your Mom is on your contact list– this should help keep mom out of spam box and put her back into your inbox.
buergej: Just why do I keep receiving the same kind of spam from a series of what appear to be women day after day after day?
YMailCarl: Spam is, unfortunately a constant problem for anyone using email. The reason you are receiving these emails is because spammers have somehow gotten a hold of your email address and are mailing you their lovely messages. There are several things you can do to assist with this. First, continue to report these messages as “Spam” by clicking the button at the top of the email labled “Spam”. Note that you don’t need to actually look at the message to do this. When you report items as spam it lets Yahoo! know that messages originating from that person are likely spam. This not only helps you, but helps other Yahoo! users as well.
YMailCarl: Second, if the emails are from similar names, you can set up filters in your email account to block those names and send them to your trash or spam folder.
YMailCarl: Obviously these messages you are receiving are not from women trying to sell you products personally – the messages are typically generated by a script which will try to forge or “spoof” the originating address.
YMailCarl: We agree that Spam is a serious issue and have many resources dedicated to fighting this problem.
YMailCarl: You can find some additional information about fighting spam here: http://help.yahoo.com/l/us/yahoo/mail/original/abuse/index.html
donhburger: Why when I mark Emails as Spam do I continue to get emils from the same persons?
YMailMaryn: When you mark a message as “spam” from within your Inbox that moves the message to your Spam Folder. And all subsequent messages that are sent from that particular sender will not be delivered to your Inbox, but will be delivered to your Spam Folder.

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