California ISP Files First CAN-SPAM Suit

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Hypertouch, a Foster City, CA, Internet service provider, sued the operator of homebuilder Bob Vila's Web site in the alleged sending of fraudulent commercial e-mail to its customers, in what is likely the first lawsuit brought under the CAN-SPAM Act.

Hypertouch's lawsuit named BVWebTies, owner of, and its Sacramento online ad company BlueStream Media in the complaint filed in U.S. District Court in San Francisco on Thursday.

It alleges that the ISP received 41 messages for Vila's newsletter Jan. 1, the day CAN-SPAM took effect. Hypertouch claims the messages contained false header information to obscure their origin. The suit also claims that the defendants ignored three unsubscribe requests; used at least one harvested e-mail address; and sent 57 messages using a dictionary attack. It also alleges that messages did not contain a physical address, as required by the federal anti-spam law.

The lawsuit asks for the court to order BVWebTies and BlueStream Media to comply with the law and for the award of damages.

Hypertouch said it filed the suit only after warning that e-mail messages sent to the ISP's customers from the BlueStream lists were in violation of the law.

A BlueStream Media representative said the company had yet to see the lawsuit.

"The accusations are false, and we're going to prove those wrong," he said. "We're in full compliance with the CAN-SPAM Act."

BVWebTies said it did nothing wrong.

"BVWebTies, owner of, takes the issue of junk e-mail seriously and believes it has operated in full compliance with the CAN-SPAM Act of 2003," the company said in a statement. "We remain committed to respecting and serving our customers. We were shocked by this action, and believe that BVWebTies will show that it operated in good faith and in full compliance with existing law."

Under CAN-SPAM, only ISPs, state attorneys general and the Federal Trade Commission are allowed to file cases. Critics of the law say allowing consumers to sue, as was permitted in many state laws that were wiped off the books by CAN-SPAM, would do more to target spammers.

"I think if direct marketers are smart, they will not keep pushing the envelope on this issue and just comply with the bare bones of the new federal law," said John Fallat, Hypertouch's attorney.

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