Settlement in first antispam law

A private citizen collects the first cash settlement from a Washington state antispam law passed earlier this year.

Stan Smith of Salem, Oregon, had never heard of junk email, let alone "spam" or any laws banning it. He just wanted to spread the word about Tahitian noni juice, which he says is pretty much a miracle cure for a wide variety of ailments.

So when a "third level" salesman told him that he could use email to find people interested in selling and buying the juice (through a Utah-based company called Morinda) as long as Smith sent them the follow-up information, Smith said, "You do what you can."

He did. John James, an unemployed Californian who joined Smith's network marketing program to make some money, himself had gotten plenty of unsolicited mail advertising how to spam. He called up one of the outfits and, for $120, the company sent out 100,000 emails providing Smith's 800 number and advertising the miracle juice and the program to sell it.

Now, Smith and James have earned the dubious titles of the first junk emailers to have paid out a settlement under the nation's first state law banning certain types of spam: Washington's antispam law, passed in March and signed into law June 11.

Enter Bruce Miller, a Seattle-based freelance writer who has decided to take full advantage of the Washington law, which, among other things, makes it illegal to send spam with forged headers, including return addresses.

While companies routinely sue spammers in court, individuals have had little recourse to go after junk emailers. But the Washington law gives individuals the right to go to court and sue for up to $500 for each time the statute is violated.

Miller sent out a "demand for damages" letter to Smith, along with about 30 other junk emailers, informing them of the state law and his willingness to settle out of court for $200.

When Smith got Miller's letter, "I was kind of like in shock," he said. He thought, "What's this all about? How could this be? Something's wrong here."

So Smith called James. "I said, 'Now John, what's this?' I said, 'Do you know anything about this?' He said, 'I didn't know there was anything wrong with what we're doing.' I said I didn't either. He said he'll go ahead and take care of it. We said let's not do that anymore."

Had it been up to James, he might not have paid, but Smith has been his mentor, and he wanted to do the right thing. But, today he said that had Miller simply asked, he would have been happy to remove him from the list. In fact, about 20 people also requested that their names be removed from the list, and he would have removed Miller's name, he said.

"I wasn't trying to offend anyone," James said. "It's not like we sent out 80 things or even two. He just got one. I decided to pay it because I was trying to avoid Stan getting caught in the middle."

On the other hand, while two-thirds of James's income that month went to pay off Miller, the emailing wasn't a total failure. In fact, he said it was quite successful, perhaps showing why, despite all its controversy, people still use bulk email to advertise. About 20 people responded positively, several of whom have gone on to join the program, he said.

"I can't believe that someone gets one email and they have a case," he said. "It just doesn't seem reasonable."

But that is just how the law works: One Washington resident getting one piece of unsolicited bulk email violating the statute has the right to sue. And while Miller may have only gotten one piece from Smith and James, that one piece comes on top of hundreds of other bulk emailers also just sending out one piece.

On Monday evening, Miller went to open his post office box, "and there was a money order for 200 bucks," he said. Miller said he was "surprised that, wow, somebody actually wants to avoid court and is going to make it easier on themselves." But he also wasn't surprised that one of the people to whom he directed the letter feared a lawsuit.

Miller's motivation? "I can sum it up to you in a few words: I hate spam."

In that, he's far from alone. The ranks of those dedicated to fighting spam continues to swell, as does the use of junk email by those who rely on it for cheap communication.

Many spammers appear to be like Smith--people who thought they found a good, cheap way to communicate but don't necessarily know they are partaking in something considered by most Netizens to be unethical. Others know what they're doing and take great measure to avoid getting caught.

And many antispammers are like Miller: They are set off by one particular event and then join what has become the jihad of the Net. In Miller's case, that event happened about a year ago when he received so much junk email that his Internet service provider started rejecting legitimate email.

Miller said he hopes the check--which he deposited yesterday--sets an example.

"I want my small victory to be an encouragement for all people who are fighting against spam," Miller said.

Paula Selis, senior counsel for the consumer protection division of Washington's attorney general's office, also hoped that Miller's action would serve as an example.

"I think it's fabulous," she said. "It's intended that people be aggressive and use it and Bruce did just that and was successful I think it should stand as an example."

But Miller emphasized that the victory should be taken within the context of a movement: "I just happened to be the first and lucky to get some money out of a spammer without a lawsuit. There are hundreds, if not thousands, of people fighting spam, just as I am. This is a victory for us all, not just me. Maybe spammers will start to see that there's some monetary drawbacks to spamming and some people who get this stuff really, really do not like it. "

Smith said he has gotten the message, and for his part plans to never again use junk email.

"I know we didn't know that there was anything wrong. Otherwise we wouldn't have done it," he said.

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