Everybody loves lawyers who sue spammers

The San Francisco law firm of Morrison and Foerster, known as MoFo, is suing a spamhaus for violations of California's antispam laws.

In its fight, MoFo is suing a Silicon Valley e-mail marketing firm called Etracks. Mr Jacobs says while it wasn't the only company sending unsolicited commercial e-mail (UCE), it was one of the biggest offenders and more importantly it's based in California.

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In its suit, MoFo says Etracks broke California's anti-spam laws by sending unwanted e-mail and advertising a range of items without the required advertising label and using the company's mail server to distribute the e-mails.

MoFo also claims a legally mandated free phone number or valid return e-mail service to request removal from the marketer's list was missing.

The response from the spammer tells you all you need to know about why the current setup doesn't work:

The lawyers for Etracks did not return calls to BBC News Online but its attorney Kenneth Wilson told the San Francisco Chronicle that Etracks only uses e-mail lists provided by clients who assert the recipients have opted to receive its messages or have an existing relationship.

On its website Etracks says it is a member of the Direct Marketing Association, an 85-year-old organisation which sets out ethical guidelines to its 5,000 members on best practice.

The organisation distances itself from spamming.

"No DMA member can send spam and the DMA agrees that people should be able to ask to get off mailing lists and stay off," says DMA's vice president of ethics and consumer affairs, Pat Faley.

To that end the DMA has designed the "e-mail preference service" where anyone can submit their e-mail address to be removed from all members' lists, says Ms Faley.

The problem, she says, is that it has no control over anyone who is not a member of DMA.

First, the Etracks lawyer is (I know this may shock you) very likely lying. Just about every piece of spam I see - and in the course of my job I see quite a bit - contains a claim that the recipient is being graced with the mail because he or she signed up to receive it. If that were true, then my friend Andrea would never receive messages telling her how she could increase her penis size, and my coworker Steve would not get advertisements for breast enhancement.

Opt-in mailing is the right answer, as long as there's enforcement behind it. Opt-in means that if you want this stuff, you go sign up for it. Do nothing, and you get nothing. Historically, the DMA has opposed legislation to make opt-in the standard, as it would reduce the potential audience of their advertisements. However, it appears that they have changed their tune and now agree that "spam [is] sending a commercial e-mail to someone with whom a marketer has not had any prior business relationship and as being sent to someone who has not asked for the e-mail". Way to go, DMA!

Anyway, this is why weasel spammers like Etracks claim that everyone who gets their spam must have asked for it in the first place. The burden of proof should be on the sender, since the act of sending unsolicited email imposes the cost on the ISPs and the recipients. I join those who have praised MoFo for taking this action. As one of their partners said, "I have been practising for over 15 years and I have never done anything as a lawyer that has been this popular."

Posted by Charles Kuffner on April 11, 2002 to Technology, science, and math