In the first major test of a new federal law that imposes stiff criminal penalties against spammers, the four biggest U.S. e-mail and Internet service providers on Wednesday joined forces to sue hundreds of defendants capable of churning out millions of unsolicited e-mails each day.
The defendants, many of whom are as-yet-unidentified “John Does,” are named in six lawsuits filed by Time Warner Inc. unit America Online, EarthLink Inc., Microsoft Corp. and Yahoo Inc.. The lawsuits, filed late Tuesday, are the industry’s first major counteroffensive launched since the CAN-SPAM Act of 2003 went into effect Jan. 1 of this year. (MSNBC is a Microsoft-NBC joint venture.)
The complaints, filed in federal courts in California, Georgia, Virginia and Washington state, target “some of the worst spammers that are out there on the Internet,” Randall Boe, executive vice president and general counsel for AOL, said at a New York news conference.
The lawsuits are the first major legal fusillade aiming to take advantage of harsh penalties -– fines of up to $6 million and five years in jail -- for those who send spam and don’t abide by rules. Among other things, the new law prohibits the falsification of subject lines and "from" information and requires that advertisers provide “opt-out” links that allow the customer to elect not to receive further solicitations.
Many spammers not identified
While most of the spammers were not identified, lawyers expressed confidence they can work through the courts, using subpoenas and other investigative tools, to identify and find them.
“We’ve been doing this a long time, and we know what we’re doing. We’re only a couple subpoenas away from standing at someone’s door and handing them a summons,” said Les Seagraves, the assistant general counsel at Earthlink, which named 75 “John Doe” defendants in its lawsuits.
The recording industry has been remarkably successful in identifying Internet users in copyright infringement lawsuits, in most cases tracing a subscriber’s unique Internet address.
Video: Antispam crusade But spammers are famously skillful at covering their tracks, often routing unwanted e-mails through hacked or unprotected computers overseas and working under aliases and shell companies, complicating efforts to trace and identify them.
One of two lawsuits filed by AOL did name one notorious alleged spammer: Davis Wolfgang Hawke, aka Dave Bridger, who has been identified in media accounts as a former leader of a neo-Nazi group who turned to spamming after being discredited when it was revealed that his father was Jewish.
The suit alleges that Hawke, his business partner Braden Bournival and an unidentified third party sent unsolicited e-mail advertising products such as penis-enlargement pills, weight-loss supplements and hand-held “personal lie detectors” that resulted in at least 100,000 complaints from AOL customers.
Lawsuit alleges sale of spamming services
It alleges that the trio also made offers to pay money to a network of spamming affiliates for each successful sale, offered “bulk-friendly hosting” to other spammers on servers in foreign countries; and sold millions of AOL customers’ e-mail addresses to other bulk e-mailers.
Others named in the complaints were JDO Media, a Florida company accused by Microsoft of sending “millions of illegal e-mail messages” touting an automated multilevel marketing program, and several affiliated Canadian companies and their principals, Eric Head, Matthew Head and Barry Head of Kitchener, Ontario, accused by Yahoo of sending approximately 94 million e-mail messages to its users in January 2004 alone.
None of the named defendants could be contacted Wednesday.
The lawsuits announced Wednesday are not the first to be filed under the new law. Last week, Hypertouch Inc., a Foster City, Calif.,-based ISP, sued Sacramento-based BlueStream Media and Boston-based BVWebTies LLC, owner of BobVila.com, charging that the companies violated the act by sending its customers unwanted and unsolicited electronic mail advertisements for Bob Vila's "Home Again Newsletter."
John Mozena, a spokesman for the Coalition Against Unsolicited Commercial E-mail (CAUCE), said his organization applauds the lawsuits, but warned it will make little difference unless they are merely the opening volley of a concerted anti-spam campaign.
“We’re in favor of anything that means spammers will be held accountable for the damage they cause ... but we don’t necessarily think it’s going to make a fundamental difference in the amount of spam that Internet users receive,” Mozena said. “There have been public and private lawsuits against spammers before, as well as action by the FTC and state attorney generals, and they haven’t had any deterrent effect because the spammers have determined that the likelihood of getting sued is so low, it’s a risk they’re willing to take.”
Opponents of the CAN-SPAM Act also have argued that the law will not be effective in combating spam because it makes too many concessions to "legitimate" marketers, opening the door for companies that had stayed on the sidelines while the legal issues were murky to join the rush to the Internet.
Early indications are that the law has had little immediate impact on the problem. A study released in February found that only 3 percent of bulk commercial e-mail met the law’s requirements by including a valid U.S. postal mail address for the sender and an “opt-out” link.
The Associated Press contributed to this report.