Man Claims Congress Needs to Clean Up Anti-Spam Act: Blocking Foul?
By Jim Stafford, The Daily Oklahoman
Jan. 27–If your in-box is spilling over with unsolicited e-mails selling everything from tomorrow’s hottest stock to cheap Rolex watches, there is but one source to blame, claims anti-spam crusader Mark Mumma of Oklahoma City:
The CAN-SPAM Act of 2003.
Congress enacted the CAN-SPAM Act in an effort to regulate the torrent of unwanted e-mails flooding the Internet mail boxes across the nation.
Instead, the CAN-SPAM Act — officially: Controlling the Assault of Non-Solicited Pornography and Marketing Act — has only emboldened spammers to fire away with millions of unsolicited e-mails that meet the legal blueprint drawn up by Congress, Mumma said.
“It legalized spam,” Mumma said. “Basically, it was a how-to guide for any spammer that wants to do it and not get punished. The government showed them exactly what to do.”
Among provisions of the CAN-SPAM Act, would-be spammers were directed to include an “opt-out” mechanism such as a return e-mail address to allow recipients to ask that they not send any more mails.
Spammers were prohibited from putting false information in the e-mail’s header information, requiring that the originating domain name and e-mail address must be accurate and identify the person who sent the email.
A spokeswoman with the Federal Trade Commission, which is charged with enforcing the CAN-SPAM Act, said spam in itself is not illegal.
“Deceptive spam is illegal,” said Claudia Bourne Farrell. “I don’t believe it’s accurate to say the CAN-SPAM Act made spam legal.
“Congress passed the CAN-SPAM Act to say ‘look, these are the kinds of violations we are looking at: if you lied about the subject of the email, if you fail to provide an opt-out button.’”
Open to interpretation Obviously, the law is open to interpretation, as Mumma discovered. He is embroiled in a defamation lawsuit with a Fairfax, Va., company called Omega World Travel, from which Mumma alleged he received several spam come-ons for a subsidiary company called Cruise.com.
First, Mumma threatened to sue Omega unless it agreed to settle for $6,250, and when it didn’t comply he posted photos of the company’s founders on a Web site called “sueaspammer.com” and called Cruise.com a spammer.
Big mistake.
Omega filed a lawsuit against Mumma claiming he had defamed them, seeking as much as $3.8 million in damages. The lawsuit has been pending for a couple years.
In the intervening time, a Virginia judge dismissed a lawsuit Mumma brought against Omega for its spamming tactics, ruling that Omega’s e-mails didn’t qualify as illegal spam. An appeals court agreed.
Mumma alleged that the Omega e-mail had a false e-mail address, which is clearly outlined as one of the CAN-SPAM Act requirements.
Apparently, the appeals court ruled the false e-mail address didn’t make the e-mail “materially” misleading as defined by the federal law because it also listed a contact number in the body of the e-mail.
“In my particular case, especially in the appeal, they found that because there was a valid phone number in the body of the e-mail itself, it doesn’t really matter what is in the header,” Mumma said. “With one fell swoop, the decision in my case has opened the door to 95 percent of the spam out there being completely legal.”
The Federal Trade Commission’s Farrell said flatly, “they have to have a valid e-mail address.”
Now Mumma faces the defamation suit by Omega, which may go to trial as early as this spring.
Omega’s attorneys claim that Mumma requested the e-mail and can prove it; he said he did not and can prove it.
Mumma recently demonstrated to a reporter how a third party can sign up an e-mail address at www.cruise.com, resulting in unsolicited e-mails.
The legal wrangle between Mumma and Omega was featured in the Jan. 15 edition of Time magazine, which prompted a sharp response from Omega’s attorneys, James P. Hodges and Thomas J. Powell. The letter, published on the www.time.com Web site, said in part:
“All of Mr. Mumma’s claims against Omega were dismissed by a federal trial court and a federal court of appeals. Those decisions were not based on mere technicalities, as suggested in the article, but on the fact that our clients complied with the applicable anti-spam laws.”
That points back to the CAN-SPAM Act, the so-called blueprint for spammers, Mumma suggested.
Julie Bays, an assistant attorney general in the Protection Unit of the Oklahoma attorney general’s office, said that among some spam law enforcers, the federal law is known as the “You Can Spam Act.”
Oklahoma has its own anti-spam law that outlaws spam that “Falsifies electronic mail transmission information or other routing information for the unsolicited commercial electronic message…”
Meanwhile, Mumma says he hasn’t given up and is documenting his wild ride into uncharted legal territory in a documentary he is filming called SLAPP Suit.
“I feel good about my chances, but even if they lose they still win because they’ve cost me $70,000 and that doesn’t include another $25,000 I have to come up with to defend myself at the trial,” Mumma said. “Eventually, I think all of their lies are going to be exposed.”
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Copyright (c) 2007, The Daily Oklahoman
Distributed by McClatchy-Tribune Business News.
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