Spam Fighters Eye New Target in Fresh Legal Offensive

Unspam Technologies, a Utah-based antispam provider, has filed a federal lawsuit against so-called e-mail harvesters — anonymous parties who collect addresses from Web sites and other lists, which they then sell to spammers.

The suit was filed in the Eastern District of Virginia under the federal CAN-SPAM law and the Virginia Computer Crimes Act, which is the state’s antispam statute.

While there have been many skirmishes between spammers and antispammers over the years, this particular legal action is unusual in a few ways: For starters, the suit is for an eye-popping US$1 billion in damages. Also, it is the first time that this particular link in the spam chain has been targeted by legal action — that is, the harvesters as opposed to the companies sending the e-mails or marketing the products. Finally, the suit was filed by a private company representing a coalition of Web users who oppose spam throughProject Honey Pot.

Difficult to Identify

For all the excitement the suit has generated, the ultimate end may be somewhat deflating for the plaintiffs, as well as supporters of anything antispam — which is to say, most of the population.

It may be difficult to identify the perpetrators, warned Peter Vogel, a partner with Gardere Wynne Sewell, especially if they are one link removed from the spam itself.

“What are the chances that they will be able to get these names? Not very good,” he told the E-Commerce Times.

Laundering IPs and Other Tactics

According to the court filing, Unspam, represented by Jon Praed of the Internet Law Group, is focusing its complaint on the 6.1 million spam messages Project Honey Pot received over a 16-month period starting in January 2005.

“We recognize that one lawsuit won’t stop spam,” Praed told the E-Commerce Times, “but this is a different take on one of the many data points that spammers use in their operation.”

Also, there is a good chance that they will be able to identify at least some of the harvesters.

“We have identified several that have failed to launder their IPs while harvesting,” said Praed.

Even if the investigation only shakes out a few perpetrators, the message sent to the spammer community will be a difficult one to ignore, he argued.

“They will realize they have to start using bot networks for harvesting as well,” Praed suggested. “And if they are buying lists for e-mails, they will have to do more due diligence on the harvesters and their work.”

In other words, the cost of doing business for spammers will go up. It will also force more spammers to stay closer to home in order to work with known entities, which will make investigation and prosecution easier.

Under a Rock

Such thoroughness does not surprise Kelly Wallace, a partner with Wellborn & Wallace, who has worked withProject Honey Pot in his own suits against spammers.

“I would not be surprised at all at whatever data they are able to produce,” he told the E-Commerce Times. Wallace represented a plaintiff in 2004, winning a $1 billion judgment against three spammers.

Then again, he added, you don’t know what you will find until you start looking.

Finding that spammers have based their operations in an overseas locale is another possibility that could lead to a dead end for Unspam, both Wallace and Vogel noted.

A New Approach

The suit is also noteworthy because a private party is using the court system to enforce the CAN-SPAM law.

“Normally, those actions are brought by ISPs (Internet service providers) or some other entity whose business is being hurt by spammers,” Vogel said.

He told of a case against spammers advertising dating services that the University of Tennessee filed to protect its students.

In another example, an ISP seized a personal car — a convertible — as part of a judgment obtained against a spammer.

“If I remember correctly, the ISP auctioned it off to its subscribers,” Vogel recounted. It wasn’t quite as satisfying as winning $1 billion, but it did come close.

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