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Rival Internet Providers Fight Spam

Yahoo, Microsoft, AOL and EarthLink use a new law to sue hundreds of bulk e-mailers.

March 11, 2004|Chris Gaither | Times Staff Writer

Four big Internet service providers have invoked a 10-week-old federal law to go after spammers who have been clogging their networks with hundreds of millions of dubious e-mail offers for fake diplomas and hand-held computers touted as "personal lie detectors."

Lawsuits filed by the ISPs, however, rely as much on state laws as the federal Can Spam Act of 2003, which took effect Jan. 1. Critics of that law have derided it as toothless because, among other things, it doesn't give ISPs much in the way of additional powers to fight distributors of unsolicited commercial e-mail.

The six suits were filed late Tuesday by Yahoo Inc., Microsoft Corp., Time Warner Inc.'s America Online and EarthLink Inc. in Northern California, Washington state, Virginia and Georgia against hundreds of bulk e-mailers. They were described by AOL general counsel Randall Boe as "the most notorious spammers on the Internet."

"We're going to employ whatever efforts we have to ... to put them out of business," he said Wednesday during a news conference in Washington, D.C.

Several previous civil lawsuits have been heralded as strong deterrents against spammers, but they have had little effect on the volume of spam coursing through the Internet. Unwanted commercial e-mail accounted for 62% of all e-mail last month, compared with 42% in February 2003, according to the San Francisco-based anti-spam software company Brightmail Inc.

The new suits probably won't do much either to bring relief to consumers frustrated by the pitches cluttering their e-mail inboxes, said Maureen Dorney, a lawyer with Gray Cary in Palo Alto.

"I don't think it's going to do much to stop the flood of spam," she said.

But Dave Baker, an EarthLink vice president, said in an interview that the Internet providers had little choice but to bring spammers to court.

"What would the alternative be, to not sue any of them?" he said. "We have to go after them."

The Can Spam Act regulates what businesses must do if they send commercial e-mail. Among other things, it requires companies to include in their messages a physical mailing address and a link that allows recipients to remove themselves from the e-mail list.

The law also bans many common tricks used by spammers, such as falsifying return addresses and harvesting e-mail addresses from websites for spamming. MX Logic Inc., an e-mail security company in Denver, estimates that about 3% of commercial e-mail follows the guidelines.

Federal and state agencies are expected to use the law to bring criminal charges against spammers.

In one of the suits, AOL accuses Davis Wolfgang Hawke, a former neo-Nazi group leader, and his business partner Braden Bournival of violating the Can Spam Act by forging their identities and failing to honor requests to be removed from their mailing list, among other things. But the Dulles, Va.-based Internet giant also claims Hawke broke Virginia laws that prohibit computer fraud, trespassing on AOL's networks and distributing software that can hide spammers' identities.

"State law continues to be the core of our civil and legal action," said Les Seagraves, EarthLink's assistant general counsel and chief privacy officer.

The Can Spam Act merely provides plaintiffs with some legal shortcuts, such as defining the size of monetary damages that can be sought, said Ray Everett-Church, an attorney who works with EPrivacy Group, a consulting firm in Paoli, Pa. What's more, the law prevents corporations and individuals who receive spam from suing the senders, he said.

"It's not that there's no value in the Can Spam Act," he said. "It's just that it's not nearly as valuable a resource as many had hoped it could have been."

Other defendants also include JDO Media Inc., of Ocala, Fla.; Eric Head, Matthew Head and Barry Head, of Kitchener in Ontario, Canada; and several hundred "John Does," whose identities the Internet service providers hope to unmask through subpoenas. They could not be reached for comment.

The four big Internet service providers were not the first to use the Can Spam Act. Hypertouch Inc., a tiny ISP in Foster City, Calif., last week accused BVWebTies, which owns the BobVila.com website, of sending e-mail that did not comply with the new federal law. BVWebTies, based in Boston, has denied the charges.

So far, the Can Spam Act is doing little to help fight the e-mail scourge, said attorney David Kramer, a partner with Wilson, Sonsini, Goodrich & Rosati who led some of the earliest lawsuits against spammers on behalf of ISPs.

"At the end of the day," he said, "there are too many spammers and not enough ISP lawsuits to create effective deterrents."

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