More spammers in the slammer

Still catching up on the week's news, I bring word that two spammers from the Arizona Spam Gang which specialized in sending hard-core porn spam to AOL users have received prison sentences.

Jeffy Kilbride and James Schaffer were convicted in June on eight charges including money laundering and transporting obscene materials. According to Bruce Sterling's article in WiReD magazine, Kilbride received six years and Schaffer received slightly over five years. They were also forced to forfeit a million dollars of ill-gotten gains.

Previously convicted were Kirk F. Rogers, Jennifer Clason of Tempe, Arizona, and Andrew Ellifson. They were allowed to skate in exchange for turning state's evidence against Kilbride and Schaffer.

More articles:

• UK Register: US porn spammers guilty as charged
• InfoWorld: Two convicted for porn spam operation
• Venkat Balasubramani: Defendants Convicted in 1st Criminal CAN-SPAM Trial
• Ars Technica: Porn spam operation lands spammers in federal pokey for over five years

FTC takes action against Hoodia spammer Brian McDaid

Via PC World: pill spammer Brian McDaid and his company "Neutraceuticals, LLC" has been ordered by a U.S. judge to stop selling his weight-loss products on line. The company's assets are also frozen.

The gist of the FTC's complaint seems to be that the advertised pills were ineffective, although CAN-SPAM violations are also mentioned.

This is only a temporary restraining order, but it is likely that more actions are in the offing.

The PC World article goes on to mention that one of the tactics used by McDaid's company was web form hijacking*. Apparently this is the first time the FTC has filed a case against a spammer doing this. The FTC's database includes 85,000 spams sent this way. That's a lot of penalties under CAN-SPAM if the FTC chooses to pursue that route.

More details can be found in this letter from McDaid's lawyer to the judge, the memo in support of the TRO, and the TRO itself. See SpamSuite for more.

Two more members of Arizona porn spam gang convicted

In January of last year, I wrote about a spam gang in Arizona that specialized in hard-core porn spam sent to AOL users. Three members, Kirk F. Rogers of Manhattan Beach, California, Jennifer Clason of Tempe, Arizona, and Andrew Ellison have already pled guilty.

Today, the UK Register reports that the remaining two members, Jeffrey Kilbride, of Venice, California and James Schaffer of Paradise Valley, Arizona, have been convicted of eight counts, including conspiracy, fraud, money laundering, and transportation of obscene materials.

Earlier reports indicated that AOL received over 600,000 complaints from its users over spam from the gang. Given the extremely small complaint rate for spam, the number of spams actually sent must have numbered in the many millions, even assuming that the embedded hard-core porn would have generated a higher-than-average complaint rate.

Texas vs Alonzo Villanueva

Another spammer in legal trouble. The state of Texas charged Alonzo Villanueva with spamming in violation of CAN-SPAM and with operating a bot network. The case was settled before trial.

Villanueva is now prohibited from registering any email account, domain name, etc under a false name. He is prohibited from sending any electronic message with forged headers. He is prohibited from having anything to do with any botnet. He must pay $5000 in fines.

More information at SpamSuite, the San Antonio Business Journal, and the Texas Attorney General press release.

Spammer Adam Vitale pleads guilty under CAN-SPAM

Via Reuters: NY man pleads guilty to spamming AOL subscribers. Adam Vitale has pleaded guilty to sending email spam to more than 1.2 million AOL subscribers. He faces up to 11 years in prison. His partner, Todd Moeller, faces the same charges.

MySpace wins anti-spam lawsuit against The Globe

Ahhh, the ebb and flow of the legal system. The year started out with a number of legal victories by anti-spammers, and then a couple of setbacks (Mumma, Gordon), and now the pendulum seems to have swung back again. First, we have the arrest of Robert Soloway, and now Red Herring is reporting that Myspace has settled with The Globe.com for over $2.5 million.

The lawsuit, filed last June, accused The Globe of spamming MySpace users from at least 95 dummy MySpace accounts created for the purpose. Nearly 400,000 spams were sent.

According to the Red Herring article, The Globe could have been held liable for up to $120 million, but given The Globe's current financial situation, MySpace decided to settle for a tiny settlement rather than risk waiting and having The Globe go under completely.

This is not MySpace's first lawsuit against spammers, and hopefully, there will be many more to come.

Venkat Balasubramani comments on the state of CAN-SPAM

On today's C-Net: Can-Spam put to the test.

As you may know if you've kept up with this blog, the CAN-SPAM act has been much in the courts lateley. Significant cases include E360 vs Spamhaus, which may ultimately hinge on whether E360 is violating CAN-SPAM, and whether or not CAN-SPAM provides immunity to blocklisting services; Cruise.com vs Mark Mumma, in which the court ruled that Cruise.com's violations of CAN-SPAM, if any, were insignificant enough to make Mumma's spammer accusations libelous, Braver vs Ameriquest which was settled out of court to Braver's satisfaction, and Gordon vs Virtumundo in which the court ruled that Gordon wasn't enough of an ISP to qualify as a plaintiff under CAN-SPAM (which does not permit individuals to sue spammers).

The Gordon case is especially interesting for several reasons. One is that although Gordon does operate an email ISP named Gordonworks.com, the court still ruled that he wasn't big enough to be entitled to sue under CAN-SPAM. Other interesting points are that Gordon's entire income came from suing spammers, that the court cited the Mumma case, and that the court has opened the door for the Virtumundo spammers to counter-sue Gordon.

Venkat argues that the CAN-SPAM law had spawned a small cottege industry of litigation brought by private individuals and small ISPs, and that the Mumma and Gordon cases represent the death-knell for these cases.

Most significantly in my opinion, the court has now raised the bar for any ISP to sue spammers. Before, the CAN-SPAM act provided for statutory damages — that is, the damages are assumed and the ISP doesn't have to enumerate them. The Gordon ruling included the assertion that Gordon was not "adversely affected". If this sets a precedent, ISPs will now need to prove not only the spam, but actual damages.

Venkat covers a number of other significant points in his article, which is well worth reading IMO.

In short, the Mumma and Gordon cases are establishing the precedent that fighting spam in the courts is for the big boys only. I wish I had better news to report.

Mark Mumma loses badly

Last November, I wrote about the Mummagraphics case. In short, Mark Mumma threatened to sue Cruise.com for spamming him, and identified them as spammers on his web site. Cruise then counter-sued for defamation. Mumma's petition for summary dismissal of the defamation case was denied (pdf, 17 pages) by the court, which ruled that Cruise had not materially violated the CAN-SPAM law.

As far back as March, 2005, Spam Kings predicted that this would turn into a train wreck.

In February, Direct magazine (a magazine dedicated to direct marketing, including email) interviewed Mumma. The title of the article, "Anti-Spammer Goes Ballistic; Admits His Address Was Registered", did not bode well for Mumma. In short, Mumma admitted that someone had signed him up at Cruise's web site, which means the mail was solicited as far as Cruise knew.

Last week, according to reports, a jury awarded Cruise.com $2.5M.

While Cruise is not entirely without fault in this story — best practices require that you confirm such sign-ups precisely to avoid problems like this — it looks like the court was correct to rule that they had not violated CAN-SPAM as Mumma had alleged. Still, I can't help but be disappointed in the ruling. It seems to me that Mumma genuinely believed that Cruise was in violation of CAN-SPAM, and he thought he had the evidence (in the form of misleading header information) to back up his case. If he genuinely thought Cruise are spammers, is it defamation to say so, even if the court eventually rules that they're not?

See John Levine's blog for an excellent take on the story, and Eric Goldman's analysis of the legal points. See also coverage from Venkay Balasubramani's Spam Notes and Daniel Solove's Concurring Opinions ("The 4th Circuit holding makes the very narrow and ineffective CAN SPAM law even more narrow and ineffective.")

E360insight sued for spamming

According to the Register, William Silverstein is suing David Linhardt, his company E360insight, and Bargaindepot.net under the CAN-SPAM act. Silverstein has received at least 87 spams from E360. He's also asking for $11.7M in punative damages (the amount E360 sued Spamhaus for).

This will be an interesting one to follow.

CAN-SPAM law survives legal challenge

Via Spam Notes: Spammer Michael Steven Twombly and cohorts leased servers under an assumed name (a violation of CAN-SPAM) from the company "Biznesshosting" and immediately began sending out millions of spams. Biznesshosting was receiving complaints within hours of giving Twombly his login credentials. In addition to the fraudulent server registration, the spams contained fraudulent headers, also a clear violation of CAN-SPAM. Biznesshosting terminated Twombly, but not in time to prevent being listed in one or more blocking lists. The FBI got involved, and eventually Twombly and his partner Joshua Eveloff were prosecuted.

Part of Twombly's defense was that the case should be dismissed on the basis that the CAN-SPAM law is too vague and overbroad. On Feb 22, the U.S. District Court ruled against him.

For more details, read the court's decision (5 pages, pdf).