Top E-Mail Providers File 6 CAN-SPAM Suits

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The top four e-mail providers announced six lawsuits under the federal anti-spam law yesterday, marking the first major legal assault against spammers since the CAN-SPAM Act took effect Jan. 1.

AOL, Microsoft, Yahoo and EarthLink held a news conference in Washington, DC, to trumpet the suits, which were filed in four states and targeted hundreds of defendants. The companies said the spammers are responsible for "hundreds of millions" of unsolicited e-mail messages hawking everything from lie detectors to body-part enlargement to get-rich-quick schemes.

The lawsuits lay out a litany of fraudulent and deceptive tactics, including false subject lines, open proxies, spoofed return addresses and the absence of a physical address or working unsubscribe function. All are illegal under CAN-SPAM.

"If you're a spammer watching this today, this is not a great day for you," AOL general counsel Randall Boe said. "Ultimately, we're going to locate you and sue you."

The four companies praised the simultaneous suits in California, Georgia, Virginia and Washington as a strong message of industry cooperation. The four ISPs formed the Anti-Spam Alliance last April, vowing to work together to combat unsolicited e-mail.

"It's a complex challenge that requires real resolve to combat," Yahoo general counsel Mike Callahan said. "Our effort is to take the fight directly to spammers."

The legal assault could provide an endorsement of the effectiveness of the much-maligned CAN-SPAM Act. Unlike some state laws it overrides, the federal law does not let consumers sue spammers, entrusting instead ISPs, the Federal Trade Commission and state attorneys general. Spam-filtering companies report that the law has not led to any drop in the level of unsolicited e-mail.

"This is a highly positive development for a national law that is a little more than 2 months old," DMA president/CEO H. Robert Wientzen said in a statement. "This coordinated industry effort among major ISPs is precisely as the law intended, and, no doubt, more actions like this will follow."

The lawsuits barely missed being the first legal actions filed under CAN-SPAM. Hypertouch, a small California ISP, earlier this week filed a lawsuit against BlueStream Media and the operator of homebuilder Bob Vila's Web site. Unlike the Hypertouch case, yesterday's suits went after high-volume senders:

· AOL filed two suits in federal court in Virginia. The first targets Davis Wolfgang Hawke, Braden Bournival and an unknown defendant accused of sending unsolicited e-mail for products like weight-loss supplements, enlargement pills and spamming services. Hawke is listed among the world's top 200 alleged spammers compiled by anti-spam organization Spamhaus. AOL said the messages generated more than 100,000 customer complaints. AOL's second suit was filed against 40 unnamed defendants accused of using false subject lines and deceptive tactics to obscure their origin. AOL said the defendants sometimes accounted for 10 percent of daily customer spam complaints.

· Yahoo filed a lawsuit in federal court in California against Eric, Matthew and Barry Head, Ontario-based e-mailers that Yahoo alleges were responsible for sending 94 million messages to Yahoo users in January alone pushing discount mortgages, debt consolidation and other products. Yahoo's suit claims "The Head Operation" used false identities, deceptive subject lines, false domains and randomized text to evade spam filters. Yahoo also alleges that the unsubscribe option was used to collect and sell personal information from those who responded.

· Microsoft filed two lawsuits in federal court in Washington against 100 unnamed defendants. Those suits allege the defendants used deceptive subject lines, open proxies and other illegal tactics to bombard Hotmail users with millions of unsolicited e-mail pitches for products like a weight-loss patch and "Super Viagra" pills.

· EarthLink filed a suit in federal court in Georgia against 75 unnamed defendants. It alleges the defendants used false headers, deceptive "from" addresses and misleading subject lines to evade EarthLink filters. The e-mails advertised diplomas, cable descramblers and other products.

Of the more than 200 defendants in the cases, just five are named. EarthLink assistant general counsel Les Seagraves said this would not be a problem.

"We're only a couple subpoenas away from standing at someone's door and handing them a summons," he said.

EarthLink in February named 16 defendants in a spam lawsuit originally filed in August 2003 against 100 unnamed defendants.

Microsoft deputy general counsel Nancy Anderson noted that in its lawsuit, the defendants are alleged to have hacked into computers outside the United States to send spam. She said it was a common misconception that using offshore computers shields spammers from U.S. legal consequences.

"Following the money is a useful technique in all these cases," she said. "The money will show us where people are and what they're doing."

The ISPs expressed hope that the legal actions would serve as a warning to other spammers that they cannot operate without legal consequences.

"We expect this will not be the last wave of industry lawsuits," AOL's Boe said.

The lawsuits all seek restraining orders and monetary damages. Company executives said they would cooperate with authorities to bring criminal charges if warranted. Seagraves noted that the ISP's civil complaint against Howard Carmack eventually led to criminal charges against him by the New York attorney general. Carmack is slated to go on trial next month.


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