Help! I've been abused!
Michael D. Thomas
mdthomas at mindspring.com
Fri Jun 21 01:36:09 EDT 2002
> As the plaintiff, I would have to prove an injury, either real or monetary.
> a result of this spamming activity, I'm sure that my primary e-mail address
> (which I've had for many years and used as a part of my professional
> is now blacklisted or filtered by one or more persons.
>Again, if I can prove injury, I have the basis
> for a suit -- I would just need to find the perpetrator.
Your address was probably picked at random, and the spammer is already on to
another. I would think that anyone whose address has been faked could
participate in a class-action suit against the perpertrator. The lawyers
bringing the suit make most all the money on those, but they also do most all
the leg work. Since the addresses are picked arbitrarily, I'd love to see a
case where anyone with an email address could qualify to be a member of the
class on the basis that the practice of choosing fake email addresses
endangers us all. Don't think it would pass muster, though. "The spammers have
rights, too" as demonstrated in this case where a spammer is suing to protect
his spam business:
Regardless, the faking of headers will probably be illegal by the end of this
congressional session. The last bill that passed (but only in the House)
passed by a really wide margin, and there are a couple similar bills floating
around both houses. CAN-SPAM is out of committee in the senate and with any
luck will become law. It isn't as strong as the regulations in the EU, but it
is a start.
> This is so basic a thing that I doubt that the CAN-SPAM's
> prohibition is both complete and constitutional.
CAN-SPAM doesn't prohibit anyone from suing about anything. The problem is
that it is weaker than H.R. 95, which gives private right of action to those
who receive spam. CAN-SPAM only gives private right of action to the ISPs and
the state AGs. Neither bill, to my memory, specifically addresses the plight
of those whose emails are faked in the process of sending spam, but both
prohibit the practice of faking headers and formulate penalities for those who
do. It seems that if ISPs (or under H.R. 95, spam recipients) can recover
damages, then someone whose email address was faked should also have a legal
formula for collecting damages. Indeed, you and others have even better
reasons to have such a formulation than those who receive spam or ISPs. But
What neither bill does is prohibit UCE altogether. UCE with real headers and a
method of opt-out is permitted by both bills. They solve some problems, but
they don't solve the essential problem of non opt-in email: a significant cost
of the advertising is borne by the recipient.
I think the political play is to get the business-minded politicos on board
with one simple fact: spam puts us at a competitive disadvantage
internationally. In countries with strong anti-spam regulations, business
don't have to spend money on anti-spam software and can instead spend it on
good stuff like developing products and services, keeping employees happy,
higher taxes based on higher profits, etc.
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