Spam laws?

[MKinCA]

What is the name of your state? California

Someone has been sending quite a bit (over 10k, possibly over 100k) pieces of spam spoofing one of my domains as the From and Reply-To addresses. Normally, this is done by "affiliates" of companies and when I contact the company in question, they claim they terminated the affiliate.

In the most recent incident which is still occurring as I type this, the spam message has no affiliate information. It simply links to the company's site. No one benefits from the mail except the company itself. The WHOIS information shows the domain as being in Hong Kong with no real information. However, using the wonderful powers of Google, I managed to locate the full and complete resume of the site's owner/operator which includes an address and telephone number. I attempted to call the number and got the person's voicemail. The greeting matches the name on the resume.

I have full logs as well as hundreds of copies of the spam messages saved here.

Now, my question is.... what do I do? Do I file suit? Heck, Can I file suit? I don't want to spend hundreds of dollars for consultation with an attorney if I will obviously have no recourse.

Also, what kind of attorney would I be looking for?

 

[Michael Wechsler]

Great question. We have all been trying to deal with this problem and if the party is outside the US it can be very costly to deal with, if at all in any practical manner. If the ultimate benefitting company is in the US, it makes things much easier but still the cost of prosecution might be too high.

California does have spam laws -- I will cite them in the following post.

Originally posted by MKinCA
What is the name of your state? California

Someone has been sending quite a bit (over 10k, possibly over 100k) pieces of spam spoofing one of my domains as the From and Reply-To addresses. Normally, this is done by "affiliates" of companies and when I contact the company in question, they claim they terminated the affiliate.

In the most recent incident which is still occurring as I type this, the spam message has no affiliate information. It simply links to the company's site. No one benefits from the mail except the company itself. The WHOIS information shows the domain as being in Hong Kong with no real information. However, using the wonderful powers of Google, I managed to locate the full and complete resume of the site's owner/operator which includes an address and telephone number. I attempted to call the number and got the person's voicemail. The greeting matches the name on the resume.

I have full logs as well as hundreds of copies of the spam messages saved here.

Now, my question is.... what do I do? Do I file suit? Heck, Can I file suit? I don't want to spend hundreds of dollars for consultation with an attorney if I will obviously have no recourse.

Also, what kind of attorney would I be looking for?

 

[Michael Wechsler]

CALIFORNIA BUSINESS AND PROFESSIONS CODE
DIVISION 7, PART 3, CHAPTER 1
ARTICLE 1.8. Restrictions On Unsolicited Commercial E-mail Advertisers
(added by S.B. 186 (2003), approved September 23, 2003)
§ 17529. The Legislature hereby finds and declares all of the following:...

Here is the part concerning penalties:

§ 17529.8. (a) (1) In addition to any other remedies provided by this article or by any other provisions of law, a recipient of an unsolicited commercial e-mail advertisement transmitted in violation of this article, an electronic mail service provider, or the Attorney General may bring an action against an entity that violates any provision of this article to recover either or both of the following:

(A) Actual damages.

(B) Liquidated damages of one thousand dollars ($1,000) for each unsolicited commercial e-mail advertisement transmitted in violation of Section 17529.2, up to one million dollars ($1,000,000) per incident.

(2) The recipient, an electronic mail service provider, or the Attorney General, if the prevailing plaintiff, may also recover reasonable attorney's fees and costs.

(3) However, there shall not be a cause of action against an electronic mail service provider that is only involved in the routine transmission of the unsolicited commercial e-mail advertisement over its computer network.

(b) If the court finds that the defendant established and implemented, with due care, practices and procedures reasonably designed to effectively prevent unsolicited commercial e-mail advertisements that are in violation of this article, the court shall reduce the liquidated damages recoverable under subdivision (a) to a maximum of one hundred dollars ($100) for each unsolicited commercial e-mail advertisement, or a maximum of one hundred thousand dollars ($100,000) per incident.

 

[MKinCA]

Are these not superceded by the Federal CAN-SPAM laws, essentially making them worthless?

Also, knowing that I am in California, my server is in New Jersey (but I received all of the bounced messages in my e-mail box in California), and the spammer (and Company that is profiting) has been traced back to Texas, where would I file suit?

 

[Michael Wechsler]

Fderal law does not necessarily conflict with the state law. Additionally, if I were the state I would argue that I have a right to use such powers to police within state boundaries. In the instance you describe, I would argue that you could file in either of the three states (although Texas is the forum where you'd probably have least objection to venue and jurisdiction) since the spammer has availed him/herself of the state's benefits and protections by having more than 'minimum contact' with the state. This doesn't always work (mail order companies are a good example) but may in this case. Still, the bottom line is whether it is worth the money and time to sue anywhere... that is the unfortunate problem.

Originally posted by MKinCA
Are these not superceded by the Federal CAN-SPAM laws, essentially making them worthless?

Also, knowing that I am in California, my server is in New Jersey (but I received all of the bounced messages in my e-mail box in California), and the spammer (and Company that is profiting) has been traced back to Texas, where would I file suit?