California SPAM Laws - Small Claims

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SDboy76

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I have an issue with 2 people I can't stop SPAM from even after doing their opt-out link they provide in the email......

So I have decided to go to small claims court and hit their pocket book since they won't stop these emails... They are getting very annoying....

I have some questions on Ca. SPAM Laws since I have been told they override the Fed. SPAM Laws (Can-Spam Act of 2003)

Basically the first one:
It keeps coming from the same domain name each day advertising a new product or even the same one.. I have copy of the print out of being removed on 8/6.. I have removed myself before then but finally decided to keep record when the emails were still coming in.. I have received a total of 96 emails after the 10 day period allowed to be removed. The issue on this one is the domain is reg. as private and the company doing the private registration won't release the information so according to the ICANN Registrar agreement I can go after the company doing the private registration.. What section of the law or business and professional code do I argue in small claims court as far as the SPAM Emails? It's hard to understand all the legal wording and can't find what I want.....


The Second one:
I think is easier because when I remove from one domain then I get it from a new domain.. I have a list and emails from over 100 domains from the same person.

Any help on how to proceed is greatly appreciated....
 
Have you tried contacting the registrar? For example, this is Godaddy's Domains By Proxy company which provides private registrations. I have different resources as an attorney to get my answers but contacting them might work - their policy is listed online and here is an excerpt from the site:

Go Daddy Spam Policy

Go Daddy does not tolerate the transmission of spam. Customers suspected to be using Go Daddy service for the purpose of sending spam are investigated by the registrar and/or hosting provider. After the registrar and/or hosing provider investigaes the complaint, Go Daddy service could be removed and the registrant's contact information exposed.

How We Define Spam

We define spam as the sending of Unsolicited Commercial Email (UCE)...

In order to use our service you must not only abide by all applicable laws and regulations, which include the Can-Spam Act of 2003 and the Telephone Consumer Protection Act, but you must also abide by Go Daddy's no spam policies. Commercial advertising and/or bulk emails or faxes may only be sent to recipients who have already "opted-in" to receive messages from the sender specifically. They must include a legitimate return address and reply-to address, the sender's physical address, and an opt-out method in the footer of the email or fax.

What We Do

We encourage all customers and recipients of email generated from our service to report suspected spam. To Report Spam: Please contact the registrar of the domain and/or the hosting provider. If you need further assistance, please email abuse@domainsbyproxy.com.

Perhaps the first step is contacting GoDaddy at the address listed above if this is the service they are using. Bona fide registrars have a similar policy. State your claims specifically and make it a point to show (a) you made reasonable efforts to prevent the spam from being sent, (b) the domain registrant violated the registrar's terms of use and thus the registrar is required by its own rules to provide the registrant's information, (c) you intend to take action under existing spam laws and that the only item remaining preventing that from happening is the registrar's shielding the identity of the domain name holder and that you request their immediate cooperation.

Good luck and let us know how this first step turns out.
 
First One:
Yes I contacted the registrar and they said there is nothing they can or will do without a court order to release the true owners information.. So it leaves me no choice to take the registrar (namecheap.com)... I was trying to find the business or professional code that is violated so when I do go to small claims I have it in front of me...

The Second One:
Yes it was private but that company released the owners information but like I said the next day its just a new domain name... Just changes everyday to another domain... And the owner of the domain won't repsond to me.... I see just Hey *** is this still your email and then he said yes then after I explained I want SPAM to stop he ignored me from then on....

So they def. need to go to court, I dont know any other way to stop this... Between these 2 people I get couple hundred emails a month just from 2 people.....
 
Oh and yeah domains by proxy and go daddy are the same way.. you have to take them to court to release the information.. They wont respond to complaints at all.....
 
If you keep on having problems, contact me. Sometimes I do pro bono work when I'm outraged when I see greed trample on the rights of the decent, good people.

I'll tell you what I'd do and it's up to you if you want to try using this tactic. Note the following:

Paragraph 7 of the "WHOISGUARD" agreement from namecheap.com:

You also warrant that neither the WhoisGuard™ Services nor Protected Domain(s) will not be used in connection with any illegal or morally objectionable activity (as defined below in section 5), or, in connection with the transmission of unsolicited commercial email(s) ("Spam"). Further, you represent and warrant that you will not provide any third party with the WhoisGuard™ Addresses for the purpose of having such third party transmit communications to you through us.

Paragraph 8 states:

SUSPENSION OR TERMINATION OF WhoisGuard™ Privacy Protection SERVICE AND DISCLOSURE OF YOUR PERSONAL INFORMATION. Notwithstanding your purchase of the WhoisGuard™ Privacy Protection Services, we reserve the right in our sole judgment and discretion to disclose your personal protected information in the event any of the following occur:

* If you breach any provision of this Services Agreement;
* If You breach any provision of the Agreement;
* If necessary to comply with any applicable laws, government rules or requirements, subpoenas, court orders or requests of law enforcement;
* If we are named as a defendant in, or investigated in anticipation of, any legal or administrative proceeding arising out of your use of the WhoisGuard™ Services or a Protected Domain;
* If necessary to comply with ICANN's Dispute Resolution Policy or other policies promulgated by ICANN;
* If necessary to avoid any financial loss or legal liability (civil or criminal) on our part our on the part of our parent companies, subsidiaries, affiliates, shareholders, agents, officers, directors and employees;
* if it comes to Backend Service Provider's attention that you are alleged to be using the WhoisGuard™ Services for purposes of engaging in, participating in, sponsoring or hiding your involvement in illegal or morally objectionable activities, including but not limited to, activities which are designed, intended to or otherwise: (i) appeal primarily to prurient interests; (ii) defame, embarrass, harm, abuse, threaten, or harass; (iii) violate state or federal laws of the United States and/or foreign territories; (iv) involve hate crimes, terrorism or child pornography; (v) are tortious, vulgar, obscene, invasive of a third party's privacy, race, ethnicity, or are otherwise objectionable; (vi) impersonate the identity of a third party; (vii) harm minors in any way; or (viii) relate to or transmit viruses, Trojan Horses, access codes, backdoors, worms, timebombs or any other code, routine, mechanism, device or item that corrupts, damages, impairs, interferes with, intercepts or misappropriates any software, hardware, firmware, network, system, data or personally identifiable information.


State that you've spoken to your attorney and he's told you that you don't need a subpoena. It's manifestly clear that the registrar has the right to terminate the WHOISGUARD service and reveal the registrant's identity as it is discretionary. Cite the paragraphs above. You have provided namecheap with sufficient evidence to easily make a determination that their customer is in violation of their own terms of service and that the customer is clearly using namecheap's WHOISGUARD product to carry on illegal activities in violation of State and Federal law, including canned-spam laws. In the event you should still be rebuffed from obtaining the registrant's contact information for the purposes of filing a lawsuit against this customer, you will not hesitate to file suit against both the customer and first against namecheap.com as a party with knowledge of this illegal act, furthering this illegal act and having a direct role in and a financial benefit obtained in furthering this illegal activity. Additionally, you will write a letter to ICANN providing them with your correspondence and experience, and you may choose to discuss this matter further elsewhere as well.

Make sure you get the fax/contact information of the legal department. Do not deal with some customer service rep. I can't tell you this will work but it's certainly the best effort you can make before having to start playing dirty. They may choose to do something internally so that they don't have to deal with this mess and this way it will solve your problem.

Unfortunately ICANN has its own motives, which I am familiar. (Funny that I was actually interviewed to work there at one point.) Good luck with this and let me/us know how it turns out.
 
Well I have tried everything I can with this company. I even got a hold of the owner and he flat out told me don't contact him anymore about this matter without a court order because there is nothing they will do until then. Told me do not contact them or he will file harassment suit against me, or if I email the company again he will consider it SPAM.. Which he can't....

So I just want to go to court... All the time, energy I have spent on this is outrageous... And it's just irritating I can't stop these emails....
 
I just want to be prepared when I go to court and have the section of law out and so on.. and to know what to put on the small claims form for violation.....
 
If you know the owner of the company, sue him personally. If you can't get the name, sue him. If you do get the name, sue the company and him. The small claims court clerk can help you with how to fill out the form to do this. If you can get hold of his address you then need to file in the small claims court located in his county. Let us know how this turns out.
 
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