Judge ties antispammer's hands

by Guest Contributor | May 12, 2004 1:57:00 PM

Takeaway: SpamCop is slapped with a temporary restraining order that prevents it from interfering with messages sent by an alleged junk e-mailer. Industry watchers express concern.

By Stefanie Olsen
Staff Writer, CNET News.com

A Northern California District Court judge issued a temporary restraining order to prevent SpamCop, an antispam operation, from interfering with messages sent by alleged junk e-mailer OptInRealBig.com.

The court granted the restraining order May 4, and it is scheduled to reconvene May 20. E-mail server company IronPort Systems, owner of SpamCop, filed an appeal Monday asking the judge to dissolve the order before the hearing date, on the grounds that it breaches first amendment rights and damages the company's operations.

The dispute involves practices of SpamCop, an operator of an antispam blocklist that third-parties reference to block bogus mail. SpamCop fields people's complaints about unwanted mail and their senders and uses that information to list the offending Internet Protocol addresses used to send the messages.

Scott Richter, the self-professed "Spam King" and president of e-mail marketing company OptIn, sued IronPort and SpamCop on April 29 for allegedly interfering with his business and causing his Internet service providers to block his company's e-mail. He also charged SpamCop with not disclosing the identity of people who complain about its e-mail, thereby aiding potential violations of the Can-Spam Act, which requires the removal of people from future mailings if they so choose.

"This whole system is done in the dark--we don't know who's complaining, what the substance of the complaint is, and there's no opportunity to correct the complaint" to comply with provisions in the Can-Spam Act that require a company to remove people from a mailing list, said Steven Richter, an attorney for OptIn.

"We're asking for the right to handle complaints."

The San Francisco court issued a temporary restraining order that prevents SpamCop from transmitting or sending "complaints it forwards to third-parties regarding (OptIn and its subsidiaries, divisions, companies, etc.) to ISPs," according to the filing. It also stops SpamCop from "removing the e-mail addresses from complaints it receives regarding plaintiff."

Representatives for IronPort, based in San Bruno, Calif., declined to comment.

Industry analysts expressed concern over the order, even though it does not necessarily indicate how the case will turn out.

"More troubling is what this means for the individuals who submit complaints to SpamCop with the expectation that SpamCop will not reveal their e-mail addresses to the people they are accusing of spamming," said Anne Mitchell, CEO of the think tank Institute for Spam and Internet Public Policy. "This is, after all, a private enterprise, not a branch of the government and certainly not a court of law, and there is no right to confront your accuser in this arena."

OptIn, based in Colorado, is embroiled in numerous lawsuits. In December, software giant Microsoft and the New York State Attorney General's office filed complaints against the company for allegedly sending millions of unsolicited commercial e-mail, specifically to members of Hotmail, Microsoft's free Web-based mail service.

Scott Richter and Synergy6, an e-mail marketing company based in New York, were among the defendants named in the six suits. Richter also has been named one of the world's largest spammers by ROKSO, the Register of Known Spam Operations, which is listed on Spamhaus, an antispam and consumer advocacy organization.

In an interview, Richter said that OptIn is in settlement talks with Microsoft and the New York office of the attorney general.

He also said that his company is a legitimate commercial e-mail service, in compliance with the Can-Spam Act. He said that the company obtains permission from all the people on its mailing list to send commercial messages, which include low-rate mortgage loans and personal grooming products, and allows those recipients to opt out of future mailings.

He argued that SpamCop reports spam to the wrong people--the ISPs (Internet service providers)--rather than the companies that send the e-mail.

"We're not going after IronPort because of their blocking. We're going after IronPort for the harassment," he said. "We're going to go after many antispam groups."

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