Category Archives: Spam

Why be concerned with social media estate planning?

The headline of this recent blog post by the U.S. government promises to answer the question of why you should do some social media estate planning. But the post falls short of providing a compelling reason to plan for how your social media accounts and other digital assets should be handled in the event of your demise. So I’ve come up with my own list of reasons why this might be good both for the individual and for our culture:

Security. People commit identity theft on both the living and the dead. (See, for example, the story of the Tennessee woman who collected her dead aunt’s Social Security checks for 22 years.) While the living can run credit checks and otherwise monitor the use of their personal information, the deceased are not so diligent. Ensuring that the dataset comprising a person’s social media identity is accounted for and monitored should reduce the risk of that information being used nefariously.

Avoiding sad reminders. Spammers have no qualms with commandeering a dead person’s email account. As one Virginia family knows, putting a stop to that form of “harassment” can be painful and inconvenient.

Keeping social media uncluttered. This reason lies more in the public interest than in the interest of the deceased and his or her relatives. The advertising model for social media revenue generation relies on the accuracy and effectiveness of information about the user base. The presence of a bunch of dead peoples’ accounts, which are orphaned, so to speak, dilutes the effectiveness of the other data points in the social graph. So it is a good thing to prune the accounts of the deceased, or otherwise see that they are properly curated.

Preserving our heritage for posterity. Think of the ways you know about your family members that came before you. Stories and oral tradition are generally annotated by photo albums, personal correspondence and other snippets of everyday life. Social media is becoming a preferred substrate for the collection of those snippets. To have that information wander off into the digital ether unaccounted for is to forsake a means of knowing about the past.

How big a deal is this, anyway? This Mashable article commenting on the U.S. government post says that last year about 500,000 Facebook users died. That’s about 0.0006% of the user base. (Incidentally, Facebook users seem much less likely to die than the general population, as 0.007% of the world’s entire population died last year. Go here if you want to do the math yourself.)

I say it’s kind of a big deal, but a deal that’s almost certain to get bigger.

Yahoo not liable for blocking marketing email

Section 230 of Communications Decency Act (47 U.S.C. 230) shields Yahoo’s spam filtering efforts

Holomaxx v. Yahoo, 2011 WL 865794 (N.D.Cal. March 11, 2011)

Plaintiff provides email marketing services for its clients. It sends out millions of emails a day, many of those to recipients having Yahoo email addresses. Yahoo used its spam filtering technology to block many of the messages plaintiff was trying to send to Yahoo account users. So plaintiff sued Yahoo, alleging various causes of action such as intentional interference with prospective business advantage.

Yahoo moved to dismiss, arguing, among other things, that it was immune from liability under Section 230(c)(2) of the Communications Decency Act. The court granted the motion to dismiss.

Section 230(c)(2) provides, in relevant part, that “[n]o provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Plaintiff argued that immunity should not apply here because Yahoo acted in bad faith by using “faulty filtering technology and techniques,” motivated “by profit derived from blocking both good and bad e-mails.” But the court found no factual basis to support plaintiff’s allegations that Yahoo used “cheap and ineffective technologies to avoid the expense of appropriately tracking and eliminating only spam email.”

The court rejected another of plaintiff’s arguments against applying Section 230, namely, that Yahoo should not be afforded blanket immunity for blocking legitimate business emails. Looking to the cases of Goddard v. Google and National Numismatic Certification v. eBay, plaintiff argued that the court should apply the canon of statutory construction known as ejusdem generis to find that legitimate business email should not be treated the same as the more nefarious types of content enumerated in Section 230(c)(2). (Content that is, for example, obscene, lewd, lascivious, filthy, excessively violent, harassing).

On this point the court looked to the sheer volume of the purported spam to conclude Yahoo was within Section 230′s protection to block the messages — plaintiff acknowledged that it sent approximately six million emails per day through Yahoo’s servers and that at least .1% of those emails either were sent to invalid addresses or resulted in user opt-out. On an annual basis, that amounted to more than two million invalid or unwanted emails.

State law spam claim in federal court not pled with required particularity

Hypertouch, Inc. v. Azoogle.com, Inc., 2010 WL 2712217 (9th Cir. July 9, 2010)

Pleading in federal court is generally a straightforward matter. Federal Rule of Civil Procedure 8 requires only that the plaintiff set forth a short and plain statement as to why that party is entitled to relief. But in cases involving fraud, there is a heightened pleading standard imposed by Rule 9.

In the case of Hypertouch, Inc. v. Azoogle.com, Inc., the plaintiff sued the defendants in federal court over almost 400,000 allegedly spam email messages. Hypertouch brought claims under California law (California Business and Professions Code § 17529.5(a)) but did not meet the heightened pleading standard of Rule 9. So the district court dismissed the case.

Plaintiff appealed to the Ninth Circuit. On review, the appellate court affirmed. It found that not only does the California statute speak in terms of commercial e-mail advertisements that contain “falsified,” “misrepresented,” “forged,” or misleading information — terms common to fraud allegations — but the complaint repeatedly described the advertisements and their content as “fraudulent.” The court held that plaintiff could not circumvent the requirements of the Rules by arguing that it did not plead all of the allegations sufficiently to set forth a claim of fraud.

It’s important to note that the court made clear, despite its holding, that it was not articulating a standard for pleading under this California statute. It merely found that in the circumstances of this case, the claim was not pled with the requisite particularity.

Government spam blocking not a violation of First Amendment right to petition

Ferrone v. Onorato, No. 07-4299, 2008 WL 4763257 (3rd Cir. October 31, 2008)

The Third Circuit Court of Appeals has held that a county government did not violate a citizen’s First Amendment right to petition the government for a redress of greivences when the county set its spam filters to block all email from the citizen’s domain. There was no evidence that such blocking was done with intent to deprive the citizen of his Constitutional rights, or with reckless disregard of those rights.

The founding fathers managed Spam

The Founding Fathers managed Spam

The Allegheny County, Pennsylvania office of economic devlopment was getting a lot of email from press@rock-port.com. A county official directed that his IT staff block all future messages sent from that address. Accidentally, however, the filter was set to block all messages from the @rock-port.com domain from being sent to any county account.

Plaintiff Ferrone, who was already in a dispute with the county, tried sending 14 email messages to various county officials over the course of five weeks. Because of the spam filter settings, the messages did not get through. So Ferrone sued, claiming a violation of the First Amendment right to petition the government for a redress of grievences. The county moved for summary judgment and the court granted the motion. Ferrone sought review with the Third Circuit. On appeal, the court affirmed.

The court held that the First Amendment’s prohibition on the “abridgement” of the right to petition the government requires a plaintiff to show an actual intent on the part of the government to diminish this right. The court refused to accept Ferrone’s argument that the act of blocking email messages alone, without an examination of the government’s intent, would rise to the level of a constitutional violation. Rejecting Ferrone’s attempts to “plump” up his “specious claim” by throwing in the First Amendment, the court held that no reasonable factfinder could have found a violation of Constitutional rights.

MySpace messages treated like e-mail under CAN-SPAM

Over at Spamnotes,Venkat put up a post about a recent decision from a federal court in California that considered the defendant’s argument that MySpace “messages” do not fall under CAN-SPAM because “the addresses to which those messages are sent lack a ‘domain name’ and have no route, instead remaining within the MySpace.com.”

Venkat has described the case far beyond my poor power to add or detract, but here’s the skinny: the court looked to the plain language of the statute to can that argument. The definition of “‘electronic mail address’ entails nothing more specific than ‘a destination . . . to which an electronic mail message can be sent,’ and the references to ‘local part’ and ‘domain part’ and all other descriptors set off in the statute by commas represent only one possible way in which a ‘destination’ can be expressed.”

MySpace v. Wallace, No. 07-1929 (C.D. Cal. July 2, 2007)
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Fourth Circuit issues important CAN-SPAM decision

In the recent case of Omega World Travel, Inc. v. Mummagraphics, Inc., No. 05-2080, the U.S. Court of Appeals for the Fourth Circuit has ruled in favor of accused spammers, in a decision which, as Professor Goldman states, is likely to “take some wind out of the sails of anti-spam plaintiffs.”

Venkat Balasubramani has a very thorough analysis of the opinion. In a nutshell, the opinion held that Oklahoma’s anti-spam statute was preempted by CAN-SPAM, that certain errors in message headers were “immaterial” and thus not actionable as misleading spam, and that allegations of nominal damages could not support a claim of trespass to chattel.

Court: Send spam to Washington state and you can be sued there

James Gordon is continuing his legal assault on spam [read about another Gordon case here], and has received a ruling in his favor from a federal court in the state of Washington. The court held that it had personal jurisdiction over an out-of-state company accused of sending spam to Gordon, a Washington resident.

The court found that Gordon presented sufficient facts to show that by knowingly sending commercial e-mails into Washington, advertising its products, the defendant was “doing business” in the state. This was a “purposeful act” done by the defendant, and thus it should have reasonably expected to be haled into a court in Washington for violation of its laws.

Gordon v. Ascentive, LLC, (Slip Op.), 2005 WL 3448025 (E.D. Washington, December 15, 2005).

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Spam filters and storage limits okay under First Amendment

Plaintiff de Mino, a part-time faculty member at the University of Houston Downtown, filed suit against the University, claiming that various restrictions placed on the use of school e-mail accounts violated the First Amendment right to free speech.

Specifically, de Mino complained of the University’s practice of shutting down e-mail accounts for adjunct professors during the summer, when they were not under contract to teach. He further complained of the inability to transmit e-mail after his account had reached its data storage limit. De Mino had other problems with the e-mail system when he failed to designate his personal e-mail address as legitimate, thus certain messages he had sent to other faculty had been caught in the system’s spam filter. De Mino contended that he was denied access when he tried to communicate with other faculty regarding University policies.

The court granted summary judgment in favor of the University, and dismissed the lawsuit. In deciding on de Mino’s First Amendment claim, the court looked primarily to two tests used to analyze such claims in the education context.

Under the Perry test (Perry Educ. Assn v. Perry Local Educators’ Assn., 460 U.S. 37 (1983)), educational authorities may reserve an internal mail system for its intended purposes, so long as there is no discrimination on the basis of viewpoint and the limitations imposed are reasonable in light of the purpose of the forum. Under the Tinker test, (Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969)), teacher communications may be suppressed only when the expression or its method of exercise materially and substantially interferes with the activities or discipline of the school.

In this case, the court held that the restrictions on de Mino’s e-mail account satisfied these tests. The limited duration of adjunct accounts, as well as the spam filters and storage limits were not content- or viewpoint-based restrictions, and were reasonable in light of the need to preserve the integrity of the IT system. Doing away with such restrictions (and allowing open access to spam and unlimited data storage) would have been a substantial interference with the activities of the school.

Faculty Rights Coalition v. Shahrokhi, 2005 WL 1657116 (S.D.Tex., July 13, 2005).

Leaving a thin slice: CAN-SPAM does not completely preempt Washington state law

Plaintiff Gordon sued defendant Impulse Marketing, an apparent source of unwanted email. Gordon brought the lawsuit in federal court, but alleged violations of the state of Washington’s Commercial Electronic Mail Statute, RCW §19.190 et seq. and Washington’s Consumer Protection Act, RCW §19.86 et seq.

Impulse moved to dismiss, arguing that the federal CAN-SPAM Act, 15 U.S.C. §7701 et seq., preempted the state statutes under which Gordon had brought the suit. The court rejected Impulse’s argument and denied the motion.

By its own terms, the CAN-SPAM Act “supersedes” any state law that “expressly regulates the use of email to send commercial messages.” 15 U.S.C. §7707(b)(1). That same provision, however, states that the Act does not supersede state laws to the extent that those laws “prohibit falsity or deception” in an email message or its attachments.

The court looked at the prohibitions of the Washington statutes and concluded that the plain language of the CAN-SPAM Act did not support Impulse’s preemption argument. The state Commercial Electronic Mail Statute prohibits “misrepresentation” and the use of “false or misleading information” in the course of sending email messages. The state Consumer Protection Act makes it illegal to send an email message with “false or misleading information in the subject line.” Accordingly, the CAN-SPAM Act did not preempt these provisions, as they serve to prohibit “falsity or deception.”

Gordon v. Impulse Marketing Group, Inc., 2005 WL 1619847 (E.D. Wash., July 11, 2005).