November 28, 2006 9:51 AM PST

Court sides with alleged 'vacation' spammer

When antispam activist Mark Mumma received unsolicited e-mails advertising cruise vacations two years ago, he posted a report on his Web site and threatened to sue Omega World Travel.

But Mumma met with an unpleasant surprise: He was the one sued in federal court by Omega World Travel and its subsidiary Cruise.com, which demanded $3.8 million in damages for defamation. Mumma, who owns Oklahoma-based MummaGraphics and runs a one-man Web design and hosting shop at Webguy.com, filed counterclaims against the companies and CEO Gloria Bohan.

The 4th Circuit Court of Appeals sided with the alleged spammers. In a little-noticed opinion issued in mid-November, a three-judge panel acknowledged the e-mail messages in question may have included a false Internet address and a nonworking "From:" address, but concluded that they nevertheless were permitted under the federal antispam law known as the Can-Spam Act.

"The Can-Spam Act preempts MummaGraphics' claims under Oklahoma's statutes," Judge James Harvie Wilkinson III wrote in an opinion published November 17 (click here for PDF).

Gloria Bohan
Gloria Bohan, CEO
Omega World Travel

The Can-Spam Act "addresses 'spam' as a serious and pervasive problem, but it does not impose liability at the mere drop of a hat," Wilkinson added.

This ruling could prove to be a setback for other antispam activists for one major reason: It suggests that, thanks to the Can-Spam Act, state laws prohibiting fraudulent or deceptive communications won't be all that useful against junk e-mail.

"There's been a lot of activity in the states to pass laws purportedly to protect their citizens" from spam, said Eric Goldman, a law professor at Santa Clara University. "The 4th Circuit may have laid waste to all of those efforts."

Goldman, who has written about the case, said the ruling that the federal Can-Spam Act trumps a state's law "has to burst the bubble of a lot of antispam activists."

David Sorkin, a law professor at Chicago's John Marshall Law School who edits the Spamlaws.com site, is more blunt. The ruling, he said, "vindicates those of us who view Can-Spam as pointless and potentially dangerous legislation."

"I consider Can-Spam dangerous because by regulating spam without prohibiting it, the law effectively legitimizes spam," Sorkin added. In addition, state laws that often take a stricter antispam approach have mostly been overruled by the U.S. Congress.

(The 4th Circuit's decision did not discuss Omega World Travel's defamation accusations, which are expected to go to trial. In a preliminary ruling, the trial judge did reject the travel companies' claims for copyright infringement, trademark infringement and unauthorized use of likeness that arose out of Mumma's now-deleted post that labeled them "spam offenders.")

Zapping more-protective state laws
In general, the Can-Spam Act of 2003 was designed to override state spam laws--with the major exception of those dealing with "falsity or deception in any portion of a commercial electronic mail message."

Oklahoma's law prohibits misrepresenting any "information in identifying the point of origin or the transmission path of the electronic mail message."

The Omega World Travel e-mail, according to Mumma, falsely included the domain name FL-Broadcast.net in its header information and used a nonworking e-mail address of cruisedeals@cruise.com as a return address.

In addition, after Mumma telephoned Omega World Travel's general counsel and gave a list of domain names to be removed from all of the company's e-mail lists, he continued to receive e-mail after Can-Spam's 10-day deadline.

But the 4th Circuit concluded that those were "immaterial errors" and therefore the repeated spam messages were legal under the Can-Spam Act.

Based on his interpretation of Congress' intent when writing Can-Spam, Wilkinson concluded that Mumma's strict reading of the law is "not compatible with the structure of the Can-Spam Act as a whole."

Neither Omega World Travel nor Cruise.com responded to a request for comment.

Mumma, though, was willing to talk. "I'm shocked and amazed by the decision by the 4th Circuit," he said. "I'm thinking maybe it's time to retire as the antispam guy. Maybe I need to let the spammers rule the world."

A longtime crusader against junk e-mail, Mumma runs the for-profit company MummaGraphics and also operates the domains SueaSpammer.com and OptOutByDomain.com. He has been planning other lawsuits too--and estimates he has spent $75,000 on legal fees so far all such pursuits, including the Omega World Travel suit. But now, Mumma said, he may give it up.

"The Can-Spam Act essentially protects the e-mailer; it doesn't protect us," Mumma said. He added: "I don't agree with the court's decision, but I'm not going to challenge it. I'm done. They completely ran me out of money. I'm broke."

Virginia-based Omega World Travel, however, appears to have little problem paying its lawyers. The company's Web site states that it has annual sales revenue of more than $1 billion and employs more than 1,100 people. It also states that Bohan has been named Office Depot's "Businesswoman of the Year."

Related cases
While no previous rulings have been as sweeping as the 4th Circuit's, other cases have led courts to evaluate whether state antispam laws are overruled by Can-Spam, which Congress enacted just in time to zap California's strict "opt-in" law that would have taken effect January 1, 2004.

In Gordon v. Impulse Marketing Group, a federal judge in Washington state said last year that Can-Spam does not override that state's spam law, which prohibits sending false or misleading information in the "Subject:" line of an e-mail message.

In another case, the 5th Circuit Court of Appeals said in 2005 that Can-Spam did not overrule the University of Texas e-mail policy that in 2003 led the school to block thousands of unsolicited e-mails sent by dating-service spammer White Buffalo Ventures, of Austin, Texas.

And in the criminal prosecution of spammer Jeremy Jaynes, a Virginia appeals court earlier this year found (click here for PDF) no conflict between state laws prohibiting forged e-mail and the Can-Spam Act.

See more CNET content tagged:
CAN-SPAM Act, anti-spam, Oklahoma, law, spammer

 

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