April 23, 2001 3:30 PM PDT

Small claims court becomes spam battlefield

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Mills College computer science professor and Sexiestgeekalive.com contestant Ellen Spertus doesn't think of herself as an anti-spam champion.

But one day last fall, she got an e-mail from Kozmo.com, and this time, the delete key just wasn't enough. "It was too outrageous to let go," Spertus said.

Although she had declined promotional e-mails from the company, Kozmo had sent an e-mail to Spertus and members like her "who had originally opted not to receive occasional e-mail news" touting new services.

So after her e-mails to the company's privacy department bounced back and her letter demanding an apology garnered none, Spertus turned to the land of fender benders and slip-and-falls to get her comeuppance. She filed suit in California's small claims court, asking for $500 in damages. Last week she won a $50 judgment against the company (plus $27.50 in court fees), under California's anti-spamming laws.

Small claims court is increasingly becoming a forum for people fed up with junk e-mail, according to spam watchers, who say individuals have little other recourse in bringing spammers to heel. Most often, Internet service providers go after spammers, partly because of a drain on their networks and because they have more legal muscle than a consumer acting alone. About 18 states have anti-spamming laws, but they often aren't enforced, meaning consumers must be proactive about taking action against unsolicited junk mail.

Washington state has one of the strictest anti-spam laws, allowing people to sue for $500 per unwanted message. However, the plaintiff must show that the sender knew the recipient was in Washington. What's more, a judge has ruled the law is "burdensome" because it violates interstate commerce laws. Other states such as Arkansas and Maryland don't have spam-specific laws, only those prohibiting e-mail harassment.

It's not much better on the criminal side. Last month, a San Diego prosecutor filed charges in what's believed to be only the second criminal spamming case in the country.

That leaves a question for consumers: Is marching down to the courthouse to file papers, shelling out $27.50, and returning to argue before a small claims judge really worth it? After all, unlike decisions in higher courts, small claims judgments don't have any bearing on the cases that come after them. Even so, anti-spam groups are cheering the efforts such as those of Spertus.

"Although there's not legal precedent, there is a cultural and social precedent," said Tom Geller founder of anti-junk mail group Suespammers.org. "Even though lawyers can't point to it, people in the anti-spamming community can point to it."

Geller's site contains detailed information about how to use the small claims forum to sue spammers.

But will such cases have any effect on the companies sending junk e-mail? It's unlikely spammers will be nickel and dimed to death, but anti-spammers say that at least legitimate companies might think twice about sending out unwanted e-mail.

Moreover, anti-spam activists say junk e-mail is becoming more of an issue, as the mailboxes of America fill with more of it every day. Though they're under fire for violating free-speech laws, several anti-spam laws have been reintroduced in Congress.

Meanwhile, those looking to sue spammers have their work cut out for them, and court victories won't always yield money. Kozmo has gone out of business since Spertus filed her case.

"If you sue a spammer, the hard part is finding them and getting them to court," said David Sorkin, an assistant professor at The John Marshall Law School who tracks spam issues. "After that, the hardest part is getting any judgment."

Spertus isn't confident she'll ever see any of the $77.50 owed her by now-defunct Kozmo.

"I didn't expect to rake in the money," said Spertus, adding that she was just trying to be a "responsible computer scientist." Even if Kozmo had sent a check, she wouldn't have cashed it. "I'd frame it," she said.

 

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