Subject: FYI: Interesting CAM SPAM court case as it relates to 2821 vs 2822

From: "Hector Santos" <[email-masked]>
Date: Fri, 17 Jun 2005 09:46:56 -0400

CT. RULES FALSE CLAIMS IN EMAIL BODY FALLS OUTSIDE CAN-SPAM
BNA's Electronic Commerce & Law Report reports that a
federal court in Idaho has ruled that the CAN-SPAM Act does
not supply a cause of action for false information included
in the body of an allegedly unsolicited e-mail message.  The
court concluded that the anti-spam law only covers false
information in email headers, not the text of the email.
Case name is Internet Access Service Providers LLC v. Real
Networks Inc. Article at
<http://pubs.bna.com/ip/BNA/eip.nsf/is/a0b0y5c4d6>
For a free trial to the source of this story, visit
http://www.bna.com/prodcuts/ip/eplr.htm

---

From: Michael Hammer <[email-masked]>
Date: Fri, 17 Jun 2005 15:08:59 -0400

Another link which provides a few more details:

http://www.internetcases.com/archives/2005/06/no_spam_with_th_1.html

---

From: "John Glube" <[email-masked]>
Date: Fri, 17 Jun 2005 16:27:40 -0400

|-----Original Message-----
|From: [email-masked]
[mailto:[email-masked]] On Behalf Of Hector
Santos
|Sent: June 17, 2005 9:47 AM
|To: IETF-SMTP; IETF-MXCOMP
|Subject: FYI: Interesting CAM SPAM court case as it relates to
|2821 vs 2822
|
|
|CT. RULES FALSE CLAIMS IN EMAIL BODY FALLS OUTSIDE CAN-SPAM
|BNA's Electronic Commerce & Law Report reports that a
|federal court in Idaho has ruled that the CAN-SPAM Act does
|not supply a cause of action for false information included
|in the body of an allegedly unsolicited e-mail message.  The
|court concluded that the anti-spam law only covers false
|information in email headers, not the text of the email.
|Case name is Internet Access Service Providers LLC v. Real
|Networks Inc. Article at
|<http://pubs.bna.com/ip/BNA/eip.nsf/is/a0b0y5c4d6>
|For a free trial to the source of this story, visit
|http://www.bna.com/prodcuts/ip/eplr.htm

Internet access services were given a private right of action
under section 7 of the Act:

|A provider of Internet access service adversely affected by a
|violation of section 5(a)(1), 5(b), or 5(d), or a pattern or
|practice that violates paragraph (2), (3), (4), or (5) of
|section 5(a), may bring a civil action in any district court of
|the United States with jurisdiction over the defendant.

My understanding is that in this case the Internet access service
did not plead the case properly. The plaintiff failed to claim:

|* It was adversely affected by a violation of section 5 (a) 1
|[False header information which includes the from address]; 5
|(b) [Aggravated Violations arising when commercial mail sent
|with false header information]; 5(d), or

|* It was adversely affected by a pattern or practice that
|violates paragraph (2) [Deceptive subject headings]; (3) [Not
|including return address or functioning mechanism to allow
|recipient to "opt-out"]; (4) [Sending commercial email after
|recipient "objects"] (5) [Not including 'identifier, opt-out and
|physical address' in commercial email].

As a result the case was dismissed upon the defendant's motion. 

However, it is not correct to make the bald statement:

|"The court concluded that the anti-spam law only covers false
|information in email headers, not the text of the email."

The Act not only regulates the subject heading, but also mandates
certain inclusions in the text and regulates the text content
when determining the message primary purpose in accordance with
the rules published by the FTC.

As an aside, in my view, the Act is fundamentally flawed as it
imposes no obligations on volume control of UBCE. 

On this point, it is interesting to see how the FTC's counsel
summarizes the FTC's consumer protection mission under the Act:

|Controlling the Assault of Non-Solicited Pornography and
|Marketing Act of 2003
<http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_co
ng_public_laws&docid=f:publ187.108.pdf> 
|(CAN-SPAM Act) (15 U.S.C §§ 7701-7713)
|This Act establishes requirements for those who send unsolicited
|commercial email. The Act bans false or misleading header
|information and prohibits deceptive subject lines. It also
|requires that unsolicited commercial email provide recipients
|with a method for opting out of receiving such email and must be
|identified as an advertisement. In addition to enforcing the
|statute, the FTC must issue rules involving the required
|labeling of sexually explicit commercial email and the criteria
|for determining the primary purpose of a commercial email. The
|Act also instructs the Commission to report to Congress on the
|feasibility of a National Do-Not-E-Mail Registry, as well as
|requiring reports on the labeling of all unsolicited commercial
|email, the creation of a “bounty system” to promote enforcement
|of the law, and the effectiveness and enforcement of the
|statute.

<http://www.ftc.gov/ogc/stat3.htm>

Of course this is a separate discussion, so I will stop here.

John Glube
Toronto, Canada

---

From: "Hector Santos" <[email-masked]>
Date: Fri, 17 Jun 2005 18:02:57 -0400

----- Original Message -----
From: "John Glube" <[email-masked]>
To: "'IETF-MXCOMP'" <[email-masked]>
Sent: Friday, June 17, 2005 4:27 PM
Subject: RE: Interesting CAM SPAM court case as it relates to 2821 vs 2822

> the rules published by the FTC.

My fundamental intepretation of the CAN-SPAM that it was a compromise to
allow SPAM as long as the SPAMMER did not lie about:

    - Who Sent it  (Sender)
    - Topic Identification (Subject)

and it gave the IETF 18 months to define how SPAMMERS will do it.

What I found interesting is that it held with my belief that we do have the
law (atleast in the US) behind us when it comes to making sure the 2821 and
2822 entities are valid.   We always did, but much less with 2822 because it
has been relaxed over the years.

    Original 822 required: Date: From, To
    2822 relaxed this to:  Date: From:

and now we have a draft from Bruce Lilly that wants to relax it move by
removing From requirement.

> imposes no obligations on volume control of UBCE.

This is already covered by other provisions of US federal laws -  property
harm basically.  AOL used this against many.

> Toronto, Canada

You know Canada has some agressive and interesting email related bills.  I
recall one article from the BNA newsletters I received (a great collection
of IP/High Tech and the law related news events), about a bill in Canada
that will make it manatory for all ISPs to have AVS Software installed.  Not
having it could result in a mal-practice claim.  I don't know it that ever
passed or not.

--
Hector Santos, Santronics Software, Inc.
http://www.santronics.com