Oklahoma Court Highlights How CAN SPAM Legalizes Spam

from the bad,-bad-news dept

Back when the CAN SPAM law was first passed, we noted that it effectively legalized spam rather than the other way around, by setting up the rules by which spam was perfectly legal. While the law itself has been effectively useless in actually stopping spam, a new court ruling has shown how it actually could help spammers. The case is one we wrote about last year, where an anti-spam activist was sued by a spamming travel operation after he opted out of their spam and they kept spamming him. He wrote about it and threatened to sue them under Oklahoma’s anti-spam law (where he resides). The company responded by suing him, claiming defamation and trademark infringement. While the court did reject the trademark infringement claim right away, and is still getting ready to look at the defamation issue, it has sided with the travel company saying that their emails are not actionable as spam under CAN SPAM — even though they had misleading header information (such as return addresses). Basically, the ruling says that Oklahoma’s own anti-spam law is bypassed by the much less strict CAN SPAM, and the false info in the header (including a non-working return address) doesn’t violate CAN SPAM at all. It’s a bad ruling for anti-spam folks everywhere, making it much easier for spammers to claim their spam is legit — and the anti-spammer in this case has said he’s basically going to give up now. It’s easy to pick on the judge in this case, but the much bigger problem is clearly CAN SPAM itself — and yet, there’s no talk of changing it, because the politicians who passed it got their press release about how they had stopped spam and have moved on.

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Comments on “Oklahoma Court Highlights How CAN SPAM Legalizes Spam”

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Joe says:

Sadly true

You should never threaten to sue anybody if you don’t have the ability to make good on it. If this guy was serious, he should have filed suit immediately after they refused to remove him from their list, instead of letting them make the first move. If he was not serious (which is obviously the case) he should have done like everyone else and just toss the messages.

IMO, an individual suing a spammer is pointless, given the current laws. These guys really have little to lose… if they lose their case, I doubt they stop spamming people. If they win, they can claim legitimacy for their “company”. Either way, they get free publicity.

Just blacklist the spammers and forget about it. Better yet, report the email as spam to your mail provider (if possible). With any luck, you can help get the spammers emails blocked for everybody.

Wyndle says:

Re: Congress is the real retards

Actually, you may be on something here. Every time I’ve heard about Congress handling a technology issue I’ve only seen evidence of complete and total ignorance of the subject. How can you possibly make a law or ruling on something you have no understanding of? I think Al Gore was one of the worst by becoming “the father of the internet.” All he did was repeat some stuff he was told and got money earmarked for a project that turned out a complete success. He had no idea what he was really involved with at the time.

My take on the situation:

A) set term limits on congressional seats (2 sounds fair to me). This will get rid of the geezers and bring in some fresh minds.
B) require congress to consult no less than three unrelated, independant tech firms on tech issues during session before voting on the subject.
C) mandate a review of tech laws 5 and 10 years after they pass to ensure they are doing what was intended. This would require additional votes to sustain the law as it is and would not allow for modification except when voted down.

|333173|3|_||3 says:

I have a friend who created a email account which hammers any email address sent in a subject line with a DoS attack, each email nicely filled with malware. TO get the spammer to open it, it is made to look like a response to the spam, with a generator to fill teh body. Even if it does not work, it alleviates teh vindictiveness he feels. If someone with a mailer worm gets hit by the DoS, well, he learns to secure his PC PDQ.

Some One says:

OP: You missed this:

Its ok for them to keep spamming you even after you request to be removed:

In addition, after Mumma telephoned Omega World Travel’s general counsel and gave a list of domain names to be removed from all of the company’s e-mail lists, he continued to receive e-mail after Can-Spam’s 10-day deadline.

But the 4th Circuit concluded that those were “immaterial errors” and therefore the repeated spam messages were legal under the Can-Spam Act.

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