Bigfoot Declares Victory in Spam Suit; Impact Debated

While free e-mail company Bigfoot Partners LC was victorious in last week's settlement with spam king Sanford Wallace, some industry observers said the ramifications are probably more symbolic than substantive.

Bigfoot announced that Wallace, president of unsolicited bulk e-mail delivery company CyberPromotions, Philadelphia, had signed an injunction prohibiting CyberPromotions from sending or helping its customers send unsolicited e-mail to any of Bigfoot's customers.

As the most notorious unsolicited bulk e-mail company, CyberPromotions has been a lightning rod for anti-spam advocates and, therefore, a symbol of what many think are practices that have chilled a potentially lucrative marketing tool.

The Bigfoot injunction also prohibits CyberPromotions from placing or any other domain name run by Bigfoot in the header of any e-mail sent from CyberPromotions or its customers — a practice used by some bulk e-mailers to avoid backlash and the thousands of bounced-back undeliverable messages that generally result from mass e-mail campaigns using harvested lists.

Wallace said he is considering bowing out of the spam business entirely.

“We've been beaten into submission,” he said.

Deirdre Mulligan, staff counsel for the Washington Center for Democracy and Technology, Washington, said there are estimates that CyberPromotions has been responsible for as much as a third of all unsolicited e-mail but questions whether muzzling the company will have any long-term effect on the amount of spam on the Web.

“[Wallace] was the access point for a lot of people, but I don't think dealing with a third of the problem is enough,” Mulligan said, adding that unsolicited bulk e-mail's exponential growth among small mailers will quickly take up any slack.

“This is a sign that spam may not succeed on that big a scale, but I don't think it means a whole lot beyond that,” said David Sorkin, associate director of the Center for Information Technology and Privacy Law at The John Marshall Law School in Chicago. “It's very difficult to block 10,000 people each sending a few hundred or a few thousand messages a day.”

Bigfoot CEO Lenny Barshack disagreed.

“We took the wind out of a lot of sails,” he said from his New York office.

Bigfoot, which is one-third owned by Acxiom Corp. and manages its Preferred Mail program, has a database of more than 1 million consumers who use Bigfoot for Life, a free permanent e-mail address forwarding service.

Wallace denies forging headers and downplayed the Bigfoot settlement.

“There was no admission of wrongdoing, no financial payment,” he said. “[Bigfoot] just got a penalty clause that says if we did something that we denied ever doing in the first place, we would agree to a penalty.”

To Wallace, the big spam news last week was the settlement he said he reached with Internet service provider Earthlink, Pasadena, CA.

“[Earthlink] got a $2 million judgment against CyberPromotions,” Wallace said, declining to elaborate. “I signed a confidentiality agreement, and it specifically states that the only thing I am allowed to mention is that there was a $2 million judgment against CyberPromotions.”

An Earthlink spokeswoman declined to comment on the settlement saying it is “not finalized and under seal.” Earthlink filed suit against CyberPromotions last year for $3 million in damages.

Wallace said he agreed to the Bigfoot and Earthlink settlements so he could end the last of a series of legal battles and turn his attention to one of two e-mail businesses. His preferred option is the bulk e-mail delivery network he announced in December but as yet has been unable to deliver. The network, Global Technology Marketing Inc., would give his e-mail marketer clients unfettered access to the Web.

For the second, “We're strongly considering starting an opt-in e-mail service [where advertising e-mail goes only to those who request it],” Wallace said. As for which path he chooses, “there will be definitive news within the next month.”

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