So Far, Spam Suit More Sideshow Than Substance

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Anyone looking for high-minded legal debate in the lawsuit filed by mystery trade group eMarketersAmerica.org against a group of anti-spammers will be disappointed.


However, those who enjoy a juicy sideshow are getting their Internet-access-fees' worth.


"There's definitely comedic value to be had here," said Ray Everett-Church, chief privacy officer at privacy consultancy ePrivacyGroup, Philadelphia. "The back and forth that is likely to occur as the defendants and plaintiffs attempt to corner each other will definitely be great theater."


The lawsuit seeks $75,000 in damages, claiming the defendants "maliciously" interfered with the plaintiff's and its members' business.


Indeed, the suit already has produced "great theater."


For example, after serving two anti-spammers with court papers during a lunch break at the Federal Trade Commission's recent spam forum, eMarketersAmerica.org's director and chief counsel Mark Felstein stood up during a panel and accused anti-spam blacklisters of having a mob mentality and hurting innocent marketers.


After the panel, FTC commissioner Orson Swindle stepped in between Felstein and defendant Adam Brower to cut short a confrontation that witnesses say looked ready to escalate into fisticuffs.


Also, at least one person named in the complaint says family members received harassing phone calls that he thinks are related to the lawsuit.


"[M]y wife answered the phone and got heavy breathing several times on the day that Felstein apparently created the [eMarketersAmerica.org] LLC," Richard Tietjens said in an e-mail interview. And in another incident "when I answered, some really crazy male voice laughed. I had no idea what it was about at that time. No calls lately."


Personal harassment related to the spam issue is common.


Tietjens said co-defendant Susan Wilson had to change her phone number because of harassing calls. Felstein countered that Wilson repeatedly tried to instant-message him and that she has posted comments online saying her dog would attack anyone who tried to serve her with court papers.


Wilson did not answer questions sent to her via e-mail.


Felstein said he has had to transfer his domain because of hacker activity and that his AOL account has been hacked by someone who sent spam from it. He also claims his e-mail address has been signed up for a slew of e-mail services, resulting in spam to his inbox, a common harassment tactic online.


Meanwhile, both the plaintiffs and defendants are shrouded in mystery.


EMarketersAmerica.org was registered in March. Felstein has said there are 50 members, but has declined to name any of them, claiming fear of retaliation against members by anti-spammers.


Anti-spammers claim eMarketersAmerica.org is a front for Boca Raton, FL-based Eddy Marin, who they claim is one of the top spammers in the world. Moreover, anti-spammers claim that Boca Raton is home to 40 or so of the 150 to 200 bulk e-mail houses responsible for more than 90 percent of spam.


"He's not even a member," Felstein said of Marin. He said members' names will be revealed during court proceedings, which may lead to what anti-spammers claim to be the one possible benefit of this suit: Plaintiffs will have to explain their operations in detail to stand any chance of winning.


"If what many of us suspect is true -- that some of the world's most prolific spammers are behind this suit -- it could provide an extraordinarily valuable look at how these spammers operate," Church said. "If they don't provide this look, they're going to be run out of the courthouse on a rail."


As for the defendants, eMarketersAmerica.org's complaint names 12 individuals and groups including spam blacklisting services The Spamhaus Project and Spam Prevention Early Warning System, or SPEWS.org. Each individual defendant is named as an administrator of both Spamhaus and SPEWS, which anti-spammers note is unusual because the two entities run competing services. Also, Spamhaus founder Steven Linford has been openly critical of SPEWS, an anonymous organization that uses tactics controversial even among anti-spammers.


Like an estimated 150 to 200 other similar services, Spamhaus and SPEWS list IP addresses suspected of being sources of spam. Many ISPs and system administrators use these blacklists to check incoming e-mail and filter e-mail from suspected spam sources.


While London-based Spamhaus operates in the open, SPEWS is registered in Russia and run anonymously to avoid lawsuits. To get removed from SPEWS' list, marketers must post messages on anti-spam group discussion list Nanae to make their case.


"Nobody I know knows who SPEWS is," said Andrew Barrett, executive director for anti-spam nonprofit SpamCon Foundation. "SPEWS has no transparency."


SpamCon on May 7 announced it had set up a legal fund for anti-spammers involved in litigation that has the potential to set legal precedent in spam law.


However, "SPEWS can't come to us for an application against the fund without revealing to us and the world at large who they might be," Barrett said.


Sources interviewed for this article said they believe that by naming all defendants as administrators of both services, Felstein is simply casting as wide a net as possible to try to harass anti-spammers and gain some information about who is behind SPEWS.


For example, the complaint names Julian Linford, Steven Linford's brother. However, Julian has "resided permanently in Italy since 1997 and has absolutely no knowledge of Spamhaus (except what he possibly reads in the press) nor the faintest idea what SPEWS is, nor whom any of the other persons named in this SLAPP suit [Strategic Lawsuit Against Public Participation] are," says a rebuttal to the suit on Spamhaus.org. Linford declined comment for this article.


"I think what plaintiff is trying to do is to fling a bunch of mud on the wall and see what sticks," Barrett said. "My personal opinion is plaintiff has no intention of seeing the inside of a courtroom on this one." As for why, Barrett said, "your guess is as good as mine."


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