Spammer lawsuit news

8/28/02 - Got the street address

The postmaster in Minnesota returned my form with the true address of the spammer, who's real company name is apparantly, "The Young America Corporation." My letter I sent to the seems to have done the trick, and I haven't received any more spam from them. I might still write a demand letter to them seeking a $50 per message fine, as allowed by California law. I haven't decided yet.

8/7/2002 - Their Last Chance

I was searching through more of the California Business and Professions Code looking for how much per message I could actually sue for, and found it in section 17538.45 (which I will include further down in this post). Apparantly I must send Opt In Freebies a notice of my anti-spam policy if I wish to collect the $50 per message damages allowed by law. If I understand this correctly, section 17538.45(f)(1) applies to ISP's only, however, section 17538.4(c) (included in my first post) specifies that a recipient should notify the spammer that they do not wish to recieve any further mailings.

Since I failed to save a copy of my previous written notification, and therefore cannot prove that I sent it, I cannot submit the emails I have been saving as evidence, however I could probably still sue due to the (lacking) content of the messages (no ADV:, no email or phone number). I wrote another message to OIF, Inc. today and saved a copy this time, so now any new messages I get will definitely be further evidence. You may view my written notification to Opt In Freebies, Inc. here.

The section of code I have been researching today is here:

  17538.45.  (a) For purposes of this section, the following words
have the following meanings:
   (1) "Electronic mail advertisement" means any electronic mail
message, the principal purpose of which is to promote, directly or
indirectly, the sale or other distribution of goods or services to
the recipient.
   (2) "Unsolicited electronic mail advertisement" means any
electronic mail advertisement that meets both of the following
requirements:
   (A) It is addressed to a recipient with whom the initiator does
not have an existing business or personal relationship.
   (B) It is not sent at the request of or with the express consent
of the recipient.
   (3) "Electronic mail service provider" means any business or
organization qualified to do business in California that provides
registered users the ability to send or receive electronic mail
through equipment located in this state and that is an intermediary
in sending or receiving electronic mail.
   (4) "Initiation" of an unsolicited electronic mail advertisement
refers to the action by the initial sender of the electronic mail
advertisement.  It does not refer to the actions of any intervening
electronic mail service provider that may handle or retransmit the
electronic message.
   (5) "Registered user" means any individual, corporation, or other
entity that maintains an electronic mail address with an electronic
mail service provider.
   (b) No registered user of an electronic mail service provider
shall use or cause to be used that electronic mail service provider's
equipment located in this state in violation of that electronic mail
service provider's policy prohibiting or restricting the use of its
service or equipment for the initiation of unsolicited electronic
mail advertisements.
   (c) No individual, corporation, or other entity shall use or cause
to be used, by initiating an unsolicited electronic mail
advertisement, an electronic mail service provider's equipment
located in this state in violation of that electronic mail service
provider's policy prohibiting or restricting the use of its equipment
to deliver unsolicited electronic mail advertisements to its
registered users.
   (d) An electronic mail service provider shall not be required to
create a policy prohibiting or restricting the use of its equipment
for the initiation or delivery of unsolicited electronic mail
advertisements.
   (e) Nothing in this section shall be construed to limit or
restrict the rights of an electronic mail service provider under
Section 230(c)(1) of Title 47 of the United States Code, or any
decision of an electronic mail service provider to permit or to
restrict access to or use of its system, or any exercise of its
editorial function.
   (f) (1) In addition to any other action available under law, any
electronic mail service provider whose policy on unsolicited
electronic mail advertisements is violated as provided in this
section may bring a civil action to recover the actual monetary loss
suffered by that provider by reason of that violation, or liquidated
damages of fifty dollars ($50) for each electronic mail message
initiated or delivered in violation of this section, up to a maximum
of twenty-five thousand dollars ($25,000) per day, whichever amount
is greater.
   (2) In any action brought pursuant to paragraph (1), the court may
award reasonable attorney's fees to a prevailing party.
   (3) (A) In any action brought pursuant to paragraph (1), the
electronic mail service provider shall be required to establish as an
element of its cause of action that prior to the alleged violation,
the defendant had actual notice of both of the following:
   (i) The electronic mail service provider's policy on unsolicited
electronic mail advertising.
   (ii) The fact that the defendant's unsolicited electronic mail
advertisements would use or cause to be used the electronic mail
service provider's equipment located in this state.
   (B) In this regard, the Legislature finds that with rapid advances
in Internet technology, and electronic mail technology in
particular, Internet service providers are already experimenting with
embedding policy statements directly into the software running on
the computers used to provide electronic mail services in a manner
that displays the policy statements every time an electronic mail
delivery is requested.  While the state of the technology does not
support such a finding at present, the Legislature believes that, in
a given case at some future date, a showing that notice was supplied
via electronic means between the sending and receiving computers
could be held to constitute actual notice to the sender for purposes
of this paragraph.
   (4) A violation of this section shall not be subject to Section
17534.

8/5/2002 - The Saga Begins

I've finally had it. Opt In Freebies, Inc. continues to send me spam despite my multiple unsubscribe requests and an email I sent threatening legal action. I've decided to get my point accross in no uncertain terms, and possibly make some money doing so. Truthfully, I'm treating this as a way to learn more about the laws and the legal system, and that is the main reason why I'm doing it.

I've decided to file suit against Opt In Freebies, Inc. persuant to the California Business and Professions Code, section 17538.4. I've included the text of that section below.

Right now I'm still in discovery mode. I'm researching state and federal laws, as well as gathering information on the offending company. A whois on the company's domain name reveals this information:

Registrant:
   Opt In Freebies, Inc.
   PO Box 5038
   Young America, MN 55551-878
   US

I've filed a form with the United States Postal Office requesting an actual street address. You can view the form I submitted here.

As promised, here is the California code I will be filing suit under:

As the text is rather long and wordy, the areas of interest are (2), (d) and (g).

Opt In Freebies, Inc. violates subsection (2) because they do not provide an email address or telephone number by which you can request removal from the mailing list. They provide a link you can click on (which I've done numerous times), however, links obviously aren't recognized under California law.

Subsection (d) is important because it establishes who is protected under this code, and I fulfill the requirements set forth therein.

The third area of interest is subsection (g), where the law states that all spam must have ADV: as the first four letters of the subject line. Opt In Freebies, Inc. does not do that, and are therefore in violation of this law.

My only concern is subsection (a) where it says, "No person or entity conducting business in this state..."
I haven't found a legal definition for "conducting business" yet. It could be argued that since they are based in Minnesota, they are conducting business there. However, it could also be argued that since they are soliciting business in the state of California, they are conducting business in this state. I will continue searching for some clarification on this one.

I will update this page as events progress, so check back regularly. Finally, here is the code I'm filing suit under:

17538.4.  (a) No person or entity conducting business in this state
shall facsimile (fax) or cause to be faxed, or electronically mail
(e-mail) or cause to be e-mailed, documents consisting of unsolicited
advertising material for the lease, sale, rental, gift offer, or
other disposition of any realty, goods, services, or extension of
credit unless:
   (1) In the case of a fax, that person or entity establishes a
toll-free telephone number that a recipient of the unsolicited faxed
documents may call to notify the sender not to fax the recipient any
further unsolicited documents.
   (2) In the case of e-mail, that person or entity establishes a
toll-free telephone number or valid sender operated return e-mail
address that the recipient of the unsolicited documents may call or
e-mail to notify the sender not to e-mail any further unsolicited
documents.
   (b) All unsolicited faxed or e-mailed documents subject to this
section shall include a statement informing the recipient of the
toll-free telephone number that the recipient may call, or a valid
return address to which the recipient may write or e-mail, as the
case may be, notifying the sender not to fax or e-mail the recipient
any further unsolicited documents to the fax number, or numbers, or
e-mail address, or addresses, specified by the recipient.
   In the case of faxed material, the statement shall be in at least
nine-point type.  In the case of e-mail, the statement shall be the
first text in the body of the message and shall be of the same size
as the majority of the text of the message.
   (c) Upon notification by a recipient of his or her request not to
receive any further unsolicited faxed or e-mailed documents, no
person or entity conducting business in this state shall fax or cause
to be faxed or e-mail or cause to be e-mailed any unsolicited
documents to that recipient.
   (d) In the case of e-mail, this section shall apply when the
unsolicited e-mailed documents are delivered to a California resident
via an electronic mail service provider's service or equipment
located in this state.  For these purposes "electronic mail service
provider" means any business or organization qualified to do business
in this state that provides individuals, corporations, or other
entities the ability to send or receive electronic mail through
equipment located in this state and that is an intermediary in
sending or receiving electronic mail.
   (e) As used in this section, "unsolicited e-mailed documents"
means any e-mailed document or documents consisting of advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit
that meet both of the following requirements:
   (1) The documents are addressed to a recipient with whom the
initiator does not have an existing business or personal
relationship.
   (2) The documents are not sent at the request of, or with the
express consent of, the recipient.
   (f) As used in this section, "fax" or "cause to be faxed" or
"e-mail" or "cause to be e-mailed" does not include or refer to the
transmission of any documents by a telecommunications utility or
Internet service provider to the extent that the telecommunications
utility or Internet service provider merely carries that transmission
over its network.
   (g) In the case of e-mail that consists of unsolicited advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit,
the subject line of each and every message shall include "ADV:" as
the first four characters.  If these messages contain information
that consists of unsolicited advertising material for the lease,
sale, rental, gift offer, or other disposition of any realty, goods,
services, or extension of credit, that may only be viewed, purchased,
rented, leased, or held in possession by an individual 18 years of
age and older, the subject line of each and every message shall
include "ADV:ADLT" as the first eight characters.
   (h) An employer who is the registered owner of more than one
e-mail address may notify the person or entity conducting business in
this state e-mailing or causing to be e-mailed, documents consisting
of unsolicited advertising material for the lease, sale, rental,
gift offer, or other disposition of any realty, goods, services, or
extension of credit of the desire to cease e-mailing on behalf of all
of the employees who may use employer-provided and
employer-controlled e-mail addresses.
   (i) This section, or any part of this section, shall become
inoperative on and after the date that federal law is enacted that
prohibits or otherwise regulates the transmission of unsolicited
advertising by electronic mail (e-mail).