August 23, 2002 4:00 AM PDT
Spam crusaders slog it out in court
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Read more about spam
Hodgell is one of a small and slowly growing cadre of spam activists who are attacking spam using the state laws that have sprung up over the past five years to restrict or outlaw the sending of unsolicited commercial e-mail. Some compare these activists' suits to the anti-smoking legal trailblazers who 20 years ago started paving the way for the recent multibillion-dollar judgments against the tobacco industry.
Hodgell ascribed the judgment to a technical error he made before he got a lawyer and dismissed it as a minor setback in a longer fight against the steroids marketer and spammers in general. But the Seattle litigant is hardly alone in finding that the road to courtroom spoils from spam is strewn with hazards.
In recent months, a Utah man found his hard drive subpoenaed in a class-action spam suit against Sprint--a subpoena the judge in the case ultimately refused to enforce. In addition, successful spam plaintiffs everywhere have found it easier to win judgments than to collect on them from often shadowy defendants.
Anti-spam litigants, often equipped with nothing more than a business or technology background and a sense of outrage, are finding themselves thrust into a temperamental justice system that is struggling to achieve consistency in a volatile new area of the law.
The Hodgell case vividly illustrates the pitfalls of bringing on individual cases against junk e-mailers, giving pause to anti-spam plaintiffs who are already distrustful of the legal system.
"There is continued frustration among anti-spam litigants," said Bruce Miller, one of the first recipients of a spam settlement. Miller cited significant differences of opinion among judges at the King County District Court in Washington state over jurisdiction and over factual errors in the court's informational Web site, and warned potential spam litigants: "Where the judges are being real nitpicky about enforcing rules and laws, the information from the court itself can lead people to think things that are not true and that will not be upheld in court."
Much of the legal fire from individuals comes in small claims court, which imposes maximum judgments of a few hundred dollars. Many spam litigants are representing themselves in court and taking a crash course in the law.
Some, like Hodgell, are taking their cases to higher courts in search of bulkier judgments. With his current legal team, Hodgell plans to re-file his case in either federal district court or state superior court in hopes of winning a judgment between $500,000 and $1 million.
With the risk of expensive counter-judgments and other obstacles warding individual spam recipients away from the courts, the real impact from spam law may wind up coming from corporate lawyers, state attorneys general and federal commissions.
Big boys on the battlefront
Internet service providers, for example, have met with significant successes on the anti-spam legal battlefield. AOL Time Warner's America Online unit, for example, in April won an injunction and secured a "significant" monetary settlement against a spammer; EarthLink last month secured a more than $24 million judgment in a comparable case.
In state capitals, attorneys general are also on the legal warpath against senders of unsolicited commercial e-mail.
In New York, Attorney General Elliot Spitzer in May sued an outfit called MonsterHut for sending unsolicited messages to New Yorkers. Washington's attorney general, Christine Gregoire, this year sued two alleged spammers in Minnesota.
California Attorney General Bill Lockyer has been soliciting specimens of junk e-mail from anti-spam mailing lists to lay the groundwork for lawsuits.
"What we're looking for is examples of spam that is illegal," said Hallye Jordan, a representative for the attorney general. "We are actively pursuing companies that are violating California's anti-spam laws, and if we find that there are companies that we can track and prove that they are violating the law, we will take appropriate action."
At the federal level, the Federal Trade Commission early this year warned that it is preparing to go after spammers in court. But the commission's threats have yet to be manifested in legal action.
Meanwhile, some individuals--variously bold, litigious and idealistic--are pursuing spammers, at once aided and confused by a growing patchwork quilt of state laws.
Twenty-six U.S. states have some sort of law restricting or banning unsolicited e-mail, according to the Spamlaws Web site, maintained by David Sorkin, an associate professor of law at The John Marshall Law School in Chicago, Ill.
A paramount concern for spam law trailblazers is having to learn the quirks and eccentricities of the law and of temperamental judges in a far-from-settled legal terrain.
A fellow King County resident seconded Miller's account of the court system there.
"The biggest obstacle was that the three judges at the local district court had three different views of what the law said and how to bring these cases, so I had to learn a different set of rules for each one judge," said Bennett Haselton, who has brought more than 50 anti-spam cases to court in Washington state. "And since judges don't say in advance what rules they're following--each of them says that their different version of the rules is 'the law'--I had to learn each of their rules just by trial and error."
But he has yet to see the bulk of his awards, having collected less than $1,000 so far.
Haselton is not alone among spam litigants to have met with mixed success in court. A California woman who took the online delivery service Kozmo to court for spamming her wound up failing to collect on a judgment against the company because it went out of business first.
But as one of the most experienced veterans of Washington's spam law battlefield, Haselton reserved his biggest complaints for the vagaries of the legal system.
Haselton criticized what he called "the wild inconsistencies in judges' handling of these cases, not just on the anti-spam law but on basic questions of courtroom procedure. This is a serious impediment to the effectiveness of anti-spam laws, and it has to be addressed before calling for more laws will make any difference."
Courtroom consistency aside, legal academics question the degree to which the law can thwart spam.
"Based on our mailboxes, we know the laws aren't having a very good deterrent effect," said Eric Goldman, assistant professor at Marquette University Law School in Milwaukee, Wis., and former chief counsel for Epinions. "And not many lawsuits are being brought under the laws. So what effect have they had? Or were the laws just a way for the legislators to slap each other on the back, go home after a hard day of work, and self-delusionally think they made a difference?"
Spamlaws' Sorkin took a somewhat brighter view of the law's effectiveness but agreed that it alone would be insufficient to stem the spam tide.
"Lawsuits have been somewhat successful in addressing the most extreme instances of spamming, and a number of jurisdictions have enacted specific laws in an attempt to regulate spam," Sorkin wrote in a USF Law Review article. "But legal approaches in general seem to have been no more successful than technical responses to the spam problem, and the primary result to date is a great deal of uncertainty surrounding spam. Ultimately, a consensus approach that coordinates legal and technical responses is likely to provide the only effective solution."
One of the reasons spam litigants are only just getting started is that laws against unsolicited e-mail have wended so slowly through legislatures and legal challenges.
Washington state's law, for example, was passed nearly four years ago but spent much of the intervening time tied up in the courts before the state's high court upheld it last year.
Another hurdle is the wide disparity of restrictions state by state. That has spam litigants agitating for a national law that would supercede state laws--but an effort to pass such legislation has stalled in Congress.
Steps against spam
Meanwhile, anti-spam litigants--aspiring or actual--have a growing list of resources on the Web to assist them in their legal exploits. The Spamcon Foundation's Law Center (formerly Suespammers Project) keeps track of laws and individual cases and hosts a discussion forum. Peacefire has its own page recommending legal anti-spam action; and Miller maintains a page advising Washington residents how to sue spammers.
While waiting for law to settle out, spam litigants warn that going to court is not for the faint of heart--or those looking to earn a quick buck.
"I would not recommend being a trailblazer to anyone who wants to do it for profit," Haselton said. "I would only recommend it to someone if a) they're idealistic enough to want to help fight spam without making enough money to pay for their time, or b) they want some practice in how to use the legal system.
"Once the trailblazing is done, however, and courts have begun to handle the cases more consistently, I hope that enough Washingtonians will become aware of their rights and bring more of these cases, either by themselves or through a lawyer, and take some spammers' money until the spammers back off," Haselton continued. "The winnings won't be enough to make a living off of--and, no, nobody is making a living off of it now--but it will be enough to motivate people who are not as idealistic as the people doing it now."
Others pursuing spammers in court sounded a similarly community-minded note.
"Bringing a spam lawsuit can be frustrating and hazardous, if done in a court where attorney fees apply," said Miller, who 20 years ago was a "nonsmoker's rights" activist. "But bringing them is a part of the necessary process of shifting public policy. Shifting public policy takes time. But you can probably help join the social movement to clean up Internet e-mail and get a few bucks along the way."