ISPs Vs. Spammers

Forbes, March 10, 2004

NEW YORK - Four major Internet service providers today announced a series of federal lawsuits against people and companies alleged to have sent hundreds of millions of unwanted commercial e-mail messages, the first lawsuit of its kind under the recently enacted federal law known as the CAN-SPAM Act.

The plaintiffs, Time Warner (nyse: TWX - news - people ), Microsoft (nasdaq: MSFT - news - people ), Yahoo! (nasdaq: YHOO - news - people ) and Earthlink (nasdaq: ELNK - news - people ) filed in federal courts in California, Georgia, Virginia and Washington state and charge the defendants with sending a combined total of hundreds of millions of bulk spam e-mail messages to customers of the four networks.

"If you're a spammer, this is not a great day for you," said Mike Callahan, Yahoo!'s general counsel at a joint press conference in Washington.

Some of the suits do not name individual spammers. Earthlink's in particular, filed in Atlanta, names 75 John Does identified only as "the prescription drug spammers," the "mortgage lead spammers," the "cable descrambler spammers" and the "get rich quick spammers." As yet the lawsuits don't seek any specific monetary damages.

"We're only a couple of subpoenas away from standing at someone's door and handing them a summons," said EarthLink's Chief Privacy Officer and Assistant General Counsel Les Seagraves.

Three of the six suits have named defendants. They include Davis Wolfgang Hawke of Medfield, Mass.--who AOL lawyers said is also known as Dave Bridger--and Braden Bournival of Manchester, N.H. They and others were accused of sending millions of e-mails offering weight loss supplements, handheld devices called "personal lie detectors" and other products.

The six lawsuits--two by Microsoft in Washington State, two by AOL in Virginia, one by Yahoo! in California and another by Earthlink in Georgia--collectively allege numerous violations of the CAN-SPAM Act, which went into effect on Jan. 1 (see "U.S. Congress Makes No Progress On Spam"). The companies are accusing the defendants of breaking several different provisions of that law. Among their complaints, the companies allege that the defendants sent messages containing deceptive solicitation for products and services ranging from pornography to diplomas.

The lawsuits further allege that some of the defendants used a so-called "open proxy," a method in which control of a computer or server is hijacked and used to send spam messages in order to disguise the origin of the message by making the trail it follows on the Internet difficult to trace. They also say the spammers use falsified e-mail return addresses, did not include physical postal mail addresses in the body of the e-mail or did not include an unsubscribe option.

Hawke--a Rhode Island native whose birth name is Andrew Britt Greenbaum--is profiled as part of a forthcoming book on the spam business by New Hampshire-based journalist Brian McWilliams. Over the course of research into how the spam business works, spanning several months, McWilliams said he has seen order logs for anatomical-enhancement products on a site belonging to Hawke. McWilliams said Hawke, using the company name Amazing Internet Products, had recorded more than 0,000 in orders for a herbal supplement product called Pinacle for the month of July 2003.

Hawke also has a controversial past as a wanna-be neo-Nazi. He was the subject of a front-page February 1999 profile in The Boston Globe, which described in detail the story of how Greenbaum, who was born to Jewish parents, changed his name to Hawke and transformed himself into the self-styled leader of a fledgling Internet-based organization called the "Knights of Freedom" while a student at Wofford College in South Carolina. When the white-supremacist movement didn't take an interest in him, McWilliams says, Hawke turned to spamming full time.

Hawke and Bournival did not immediately respond to phone messages seeking comment.

In one of its complaints filed in Virginia, AOL says, Hawke and Bournival transmitted messages advertising "The Banned CD," directing recipients to send payments for the CD to a private mailbox location in Pawtucket, R.I. AOL says in the complaint that the message triggered more than 100,000 complaints from its members. AOL is seeking an injunction to force them to stop using its network to send the messages. AOL also says in the complaint that the CAN-SPAM act allows for fines up to 0 for each violation of the act and also cites a Virgina law that would allow the company to recover for each message sent to an AOL member.

In a test that so many Internet users are likely familiar with, Yahoo! lawyers said they tried to follow through the unsubscribe option on one of the offending messages by following a link to a Web site that claimed it would remove the address from the spammer's list. The given address was later found to have been sold to other spammers.

Earthlink lawyer Dave Baker estimated that about half of the e-mail processed by the company's network is unwanted spam. He said the cost of handling the unwanted mail and protecting the experience of customers outweighs the cost of investigating and litigating against the problem.

None of these companies are new to the game of suing spammers. Earthlink has been particularly active in litigating against spammers in the past, having won judgments last year for a combined total of more than million in two cases. The companies say that collecting damages is a secondary concern to putting the alleged spammers out of business. Microsoft last year filed 15 lawsuits in Washington State and the U.K. using laws against spammers who hammer users of its MSN and Hotmail e-mail services (see "Microsoft's Legal Offensive Against Spam).

The lawsuits come against the backdrop of an ever-increasing tide of unwanted commercial e-mail, and a flurry of new activity by government and industry to bring it to heel. Companies, including many of those involved in today's lawsuits, and industry groups have been talking about making revisions to the protocols that handle e-mail, focusing on forcing those who send e-mail to identify themselves clearly, and cut off the economic incentive to send spam (see "D-Day In The Spam War").

Other efforts have focused on sabotaging the economic model of the spam business by placing barriers in front of those who send it, either by charging fees or through levying other costs. Microsoft Chairman Bill Gates has recently floated the idea of creating e-mail "stamps" for which e-mail senders would "pay," not with money but with computing time. By taking ten seconds of computing time to solve a mathematical puzzle, those who send as many as a few dozen e-mail messages a day wouldn't lose much in the way of productivity. But those seeking to send millions of messages at a time would have to devote far more computing time for every batch of messages they send, making it far more difficult, if not impossible, to send bulk messages in such numbers.

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Arik Hesseldahl is a staff editor at Forbes.com. Prior to joining the company in May 2000, Arik worked for Electronic News and Internet World and has written for Wired News, Electronic Business Asia Magazine and Columbia Journalism Review.

Put the cost of junk email on the sender. Instead of delivering the mail to the recipient, where the message is stored, store all messages on the sender's server (or ISP). Sending a mail would only deliver a very small notification message to the recipient (with a URL back to the server with the mail on it). A million-address junk email would then consist of a million *notifications* of mail, each pointing back to the same server. After a dozen or so complaints, the account would be terminated, and the ISP would issue a revocation of the junk email to the million or so recipients. The potential victims of junk email would never realize what happened.

This new style of mail would require a total overhaul of the current email system. It can be done, if mail clients are extended to handle this new kind of mail.

(this idea was created as part of the mail 2000 project by djb)