Re[2]: Suing Spammers

[Robert Braver <rb...@ohww.norman.ok.us>]

On Saturday, May 13, 2006, 8:46:46 AM, Rob McEwen wrote:

RMPS> Add all this up and I'm quite sure that they had to be
RMPS> violating that law in Georgia.

I may have missed something - what would be violative of CAN-SPAM
and/or Georgia law here? I'm a bit familiar with the GA law because,
as having litigated several cases under CAN-SPAM and Oklahoma law, I
was asked to review and comment on a draft of the GA law, and I
don't see where you have indicated any violations.

RMPS> But suppose I **could** prove that they were in violation of
RMPS> that law in Georgia, would there be ANY financial motivation
RMPS> or reward for me to sue them... (assuming that I won in
RMPS> court)?

Look at the law.  What kind of statutory damages are you entitled to
per violation and/or per day?  How many violations/days do you have?
Are attorney's fees recoverable?  (I don't remember the details as
to available damages, etc. - I was more concerned with other things
in the draft legislation, and in any event never carfully reviewed
the GA law as passed).

RMPS> If not, I simply don't have the financial resources to put my
RMPS> company and myself through such an ordeal. I would go out of
RMPS> business for lack of focus on the things that I need to
RMPS> concentrate on.

It's an unfortunate reality that litigation - even if it's pretty
clear cut and oyu're dealing with a slimebag violator who really
needs to be stopped - can be costly and include risks. I recently
pursued a case against a major spammer in federal court and won. I
have a $10 million judgment, (which, along with a dollar, might get
me a cup of coffee). I did get the court to issue an injunction,
which was what made it worthwhile. However, not everybody is in a
position to expend the time and resources to do something like this
on principle.

If you have a good case, good statutory damages, and a defendant
that's a going concern or otherwise has assets, seek out an
attorney or law firm willing to take the case on a contingency
basis.

-- 
Best regards,
 Robert Braver
 rbraver@ohww.norman.ok.us

Re[2]: Suing Spammers

[Robert Braver <rb...@ohww.norman.ok.us>]

On Saturday, May 13, 2006, 7:40:25 PM, Bronto wrote:

B> So a good rule of thumb is that since I'm legit, I follow CAN-SPAM. 
B> Real spammers have to contend with state laws too.

I don't have all the facts as to this (theoretical?) situation, so
I'll answer the long way.

Under CAN-SPAM, legitimate senders of commercial email (e.g.
sent with the express permission of the recipient) still have to
conform to certain minimum standards, such as the inclusion of a
physical mailing address, notification of option to decline to
receive further messages, and honoring any such "unsubscribe"
requests.

While CAN-SPAM doesn't prohibit unsolicited commercial email, it
doesn't legalize it either. Common-law claims are still available,
and UCE is already pretty much universally prohibited and
blocked/filtered by ISPs. If you're sending UCE and standing still
(e.g. CAN-SPAM compliant), a large number of your recipients won't
get your messages. In fact, CAN-SPAM requires UCE to include a
conspicuous notice that the message is a commercial advertisement,
(which could be used to score on for SA).

What CAN-SPAM does do is provide specific civil remedies and
criminal penalties for the standard fraudulent spammer tactics that
are required to get around filters and avoid having their plug
pulled right away.

Fraudulent tactics such as forged headers, unauthorized use of
relays/proxies, etc. are still actionable under state laws, other
federal laws (such as the Computer Fraud and Abuse Act and RICO), as
well as CAN-SPAM.

Of course, anyone concerned about their obligations or remedies
under CAN-SPAM or other relevant laws should consult a licensed
attorney in their state. I'm not attempting to give legal advice to
anyone - just perhaps a starting point for some questions for their
attorney.

-- 
Best regards,
 Robert Braver
 rbraver@ohww.norman.ok.us

Re: Suing Spammers

[Bronto <br...@csd-bes.net>]

So a good rule of thumb is that since I'm legit, I follow CAN-SPAM. 
Real spammers have to contend with state laws too.

Rob

Robert Braver wrote:
> On Saturday, May 13, 2006, 4:55:48 PM, Bronto wrote:
> 
> B> I thought CAN-SPAM preempted all state's laws.(?)
> 
> CAN-SPAM does not preempt state laws to the extent that those laws
> deal with falsity and deception. Provisions relating to
> forged/missing/obfuscated headers, deceptive subject lines, etc.,
> are in full force and effect. Many state laws allow for substantial
> statutory damages for such violations, usually to the service
> provider.
> 
> Portions of state laws that would regulate otherwise non-fraudulent
> or deceptive commercial email, e.g. opt-in/opt-out, identification,
> etc. are preempted.  In those areas, CAN-SPAM is the law of the
> land.
> 
> 

Re[2]: Suing Spammers

[Robert Braver <rb...@ohww.norman.ok.us>]

On Saturday, May 13, 2006, 4:55:48 PM, Bronto wrote:

B> I thought CAN-SPAM preempted all state's laws.(?)

CAN-SPAM does not preempt state laws to the extent that those laws
deal with falsity and deception. Provisions relating to
forged/missing/obfuscated headers, deceptive subject lines, etc.,
are in full force and effect. Many state laws allow for substantial
statutory damages for such violations, usually to the service
provider.

Portions of state laws that would regulate otherwise non-fraudulent
or deceptive commercial email, e.g. opt-in/opt-out, identification,
etc. are preempted.  In those areas, CAN-SPAM is the law of the
land.


-- 
Best regards,
 Robert Braver
 rbraver@ohww.norman.ok.us

Re: Suing Spammers

[Bronto <br...@csd-bes.net>]

I thought CAN-SPAM preempted all state's laws.(?)

Robert Braver wrote:
> On Saturday, May 13, 2006, 8:46:46 AM, Rob McEwen wrote:
> 
> RMPS> Add all this up and I'm quite sure that they had to be
> RMPS> violating that law in Georgia.
> 
> I may have missed something - what would be violative of CAN-SPAM
> and/or Georgia law here? I'm a bit familiar with the GA law because,
> as having litigated several cases under CAN-SPAM and Oklahoma law, I
> was asked to review and comment on a draft of the GA law, and I
> don't see where you have indicated any violations.
> 
> RMPS> But suppose I **could** prove that they were in violation of
> RMPS> that law in Georgia, would there be ANY financial motivation
> RMPS> or reward for me to sue them... (assuming that I won in
> RMPS> court)?
> 
> Look at the law.  What kind of statutory damages are you entitled to
> per violation and/or per day?  How many violations/days do you have?
> Are attorney's fees recoverable?  (I don't remember the details as
> to available damages, etc. - I was more concerned with other things
> in the draft legislation, and in any event never carfully reviewed
> the GA law as passed).
> 
> RMPS> If not, I simply don't have the financial resources to put my
> RMPS> company and myself through such an ordeal. I would go out of
> RMPS> business for lack of focus on the things that I need to
> RMPS> concentrate on.
> 
> It's an unfortunate reality that litigation - even if it's pretty
> clear cut and oyu're dealing with a slimebag violator who really
> needs to be stopped - can be costly and include risks. I recently
> pursued a case against a major spammer in federal court and won. I
> have a $10 million judgment, (which, along with a dollar, might get
> me a cup of coffee). I did get the court to issue an injunction,
> which was what made it worthwhile. However, not everybody is in a
> position to expend the time and resources to do something like this
> on principle.
> 
> If you have a good case, good statutory damages, and a defendant
> that's a going concern or otherwise has assets, seek out an
> attorney or law firm willing to take the case on a contingency
> basis.
>