Judge sides with plaintiff, refuses to dismiss wiretapping suit against Google

Judge Koh published her ruling on Google’s motion to dismiss today.
It’s a 43 page ruling, which I’m still digesting. But the short answer is that Google’s motion was denied almost in total. Google’s motion was granted for two of the claims: that email is confidential as defined by the California Invasion of Privacy Act (CIPA, section 632) and dismissal of a claim under Pennsylvania law.

For the foregoing reasons, the Court hereby GRANTS Google’s Motion to Dismiss with leave to amend with respect to Plaintiffs’ CIPA section 632 claims and Plaintiffs’ Pennsylvania law claim as it relates those who received emails from Gmail users. The Court DENIES Google’s Motion to Dismiss with respect to all other claims. Plaintiffs shall file any amended complaint within 21 days of this order. Plaintiffs may not add new causes of action or parties without a stipulation or order of the Court under Rule 15 of the Federal Rules of Civil Procedure. Failure to cure deficiencies will result in dismissal with prejudice.

The dismissals are a little easier to explain than what was granted. I’ll tackle those now. With the motion to dismiss, I will put together a longer post that discusses what the plaintiffs are alleging and what the judge found.
One of the claim’s by the plaintiff is that under the California invasion of privacy act (CIPA) email should be considered confidential. The act defines confidential communication as

any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

The judge dismisses this claim stating that the “[P]laintiffs have not plausibly alleged that they had an objectively reasonable expectation that their email communications were “confidential” under the terms of section 632.14” In an “overabundance of caution,” however, she grants the Plaintiffs leave to amend their complaint.
The plaintiffs are also making claims under other state laws in addition to California: Pennsylvania, Florida and Maryland. Google argued that Pennsylvania law only protects the sender of the message and since the plaintiffs are representing the receivers of the message, the law does not apply. The judge agrees, but granted the plaintiffs leave to amend the complaint.
All other motions were denied.
 

Yahoo trying to cope with misdirected email
Google wiretapping case, what the judge ruled

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TWSD: Lying and Hiding

Another installment in my ongoing series: That’s What Spammers Do. In today’s installment we take a look at a company deceiving recipients and hiding their real identity.
One of my disposable addresses has been getting heavily spammed from mylife.com. The subject lines are not just deceptive, they are provably lies. The mail is coming from random domains like urlprotect.com or choosefrequency.com or winnernotice.com advertising links at safetyurl.com or childsafeblogging.com or usakidprotect.com.
The spam all claims someone is “searching for…” at their website. The only thing is, the email address is associated with a fake name I gave while testing a website on behalf of a client. I know what website received the data and I know what other data was provided during the signup process. I also know that the privacy policy at the time said that my data would not be shared and that only the company I gave the information to would be sending me email.
Just more proof that privacy policies aren’t worth the paper they’re written on. But that’s not my real issue here.
The real issue is that I am receiving mail that is clearly deceptive. The subject lines of the emails up until yesterday were “(1) New Message – Someone Searching for You, Find Out…” Yesterday, I actually clicked through one of the messages to confirm that the emails were ending up at mylife.com. After that, the subject lines of the emails changed to “(1) New Person is Searching for You.”  I don’t know for sure that my click has caused the change in subject lines, but the timing seems a bit coincidental.
It’s not that someone, somewhere gave mylife.com bad data, or that someone typed a name into the mylife.com search engine and the mylife.com database showed that name and my email address were the same. Neither this name or this email address show up in a google search and I can say with certainty that this is a unique address and name combination given to a specific website. Therefore, the subject lines are clearly and demonstrably lies.
The spams are also coming from different domains and advertising links in different domains. The content is identical, the CAN SPAM addresses are identical. While the court may not rule this is deceptive under the rules of CAN SPAM, it certainly is an attempt to avoid domain level spam filters.
Who are mylife.com? Well, their website and the CAN SPAM address on their spam claims they are the company formerly known as reunion.com. I’ve talked about reunion.com here before. They have a history of harvesting addresses from users address books. They were sued for deceptive email practices under California law, but won the case just recently. They seem to think that the court case was permission to send deceptive email and have thus ramped up their deceptive practices.
If you are a legitimate email marketer, there are a couple take home messages here.
1) Spammers send mail with different domains, from different IP addresses, that contain identical content, landing pages and CAN SPAM addresses. Legitimate marketers should not rotate content and sends through different domains or different IP addresses. Pick your domain, pick your IP and stick with it.
1a) Spammers use randomly chosen domain names and cycle through domains frequently. Legitimate marketers must not use unrelated domains in marketing. Use a domain name that relates to your product, your industry or you.
2) Spammers send mail with deceptive subject lines. Legitimate marketers should make sure their subject lines are clear and truthful.
3) Spammers send mail in violation of the privacy policy under which information was collected. Legitimate marketers should be very careful to handle data in accordance with their privacy policies.
That’s what spammers do. Is that what you do?

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Spammers and Google+

I have a google+ account, but don’t check it very often. There seems to be a significant amount of noise on the feeds and trying to keep up with all the people who added me to circles was driving all the real mail out of my gmail inbox.
This morning I realized the noise just got louder. It seems spammers are buying very, very old lists scraped from usenet and inviting everyone on those lists to join them on Google+. Yup, an address of mine that has not been used in 7 or 8 years and is not very publicly associated with me got a Google+ invite from someone I’ve never heard of before.
I know there have been a lot of complaints about spammers abusing Google+. I thought it was possible, but I didn’t realize they were actually purchasing email lists to load into Google and spam people.

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Changes at Gmail

As I’ve said before, I can usually tell when some ISP changes their filtering algorithm because I start getting tons and tons of calls about delivery problems at that ISP. This past month it’s been Gmail.
There have been two symptoms I’ve been hearing about. One is an increase in bulk folder delivery for mail that previously was reliably hitting the inbox. The other is a bit more interesting. I’ve heard of 3 different mailers, with good reputations and very clean lists, that are seeing 4xx delays on some of their mail. The only consistency I, and my colleagues at some ESPs, have identified is that the mail is “bursty.”
The senders affected by this do send out mail daily, but the daily mail is primarily order confirmations or receipts or other transactional mails. They send bi-weekly newsletters, though, exploding their volume from a few tens of thousands up to hundreds of thousands. This seems to trigger Gmail to defer mail. It does get delivered eventually. It’s frustrating to try and deal with because neither side is really doing anything wrong, but good senders are seeing delivery delays.
For the bulk foldering, Bronto has a good blog post talking about the changes and offering some solid suggestions for how to deal with them. I’m also hearing from some folks who are reliable that Gmail may be rolling back some of the bulk foldering changes based on feedback from their users.
So if you’re seeing changes at Gmail, it’s not just you.

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