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Anti-Spammers Dead Wrong on Mumma Decision

By Dec 06, 2006

Anti-spammers are claiming a recent court decision against e-mail activist Mark Mumma in favor of marketer Omega World Travel is clear evidence that the federal Can-Spam act is a disaster.

David Sorkin, a law professor at Chicago’s John Marshall Law School reportedly told CNET the ruling “vindicates those of us who view Can-Spam as pointless and potentially dangerous legislation.”

Nonsense.

For background, the Fourth Circuit Court of Appeals in mid-November sided with vacation marketer Omega World Travel and its subsidiary Cruise.com, saying that though the company’s e-mails included inaccurate return address information, the inaccuracies did not make Omega’s headers “materially false or materially misleading.” Moreover, the e-mails were “chock full of methods to ‘identify, locate, or respond to’ the sender,” the court said.

The court also upheld a lower court’s ruling that the Can Spam act preempts Oklahoma’s more strictly worded anti-spam law.

The decision is evidence that Can Spam is working exactly as it should.

Here’s why: The Can Spam Act superceded an increasingly Byzantine maze of state legislation that threatened to eradicate commercial e-mail. It allows companies to make good-faith mistakes while giving law enforcement officials and Internet service providers the tools to prosecute the criminals who are truly responsible for polluting our inboxes.

No other e-mail-related law in the world has been used as often or as effectively as the U.S. Can Spam Act to prosecute fraudulent e-mailers.

Actions brought under Can Spam this year alone resulted in a whopping $11 million judgment against a mortgage spammer in favor of Internet service provider Earthlink, a seven-figure settlement from Texas spammer Ryan Pitylak and two large six-figure settlements in California.

Moreover, the Federal Trade Commission struck the fear of god into the mainstream e-mail marketing industry this year by nailing Yesmail on a technical glitch.

If blacklister Spamhaus is correct in its assertion that 80% of the world’s spam can be traced to 200 sources, then the U.S. is making its share of a dent in the problem. What’s more, it’s a safe bet that Omega is not one of those 200 sources.

Meanwhile, Mumma’s defeat shows that Can Spam works as intended to defend businesses against nuisance litigation.

Each of the e-mails Mumma allegedly received from Cruise.com reportedly contained an opt-out link, a physical postal address, a link to the Cruise.com Web site and a toll-free number to reach the company.

But rather than use the opt-out link, Mumma called John Lawless, Omega’s lawyer, to complain. The fact that Mumma could reach Omega’s house lawyer so easily indicates this was not a company trying to hide. Mumma told Lawless he didn’t use the opt-out mechanisms in Omega’s e-mail because “only idiots do that,” according to the court.

Instead, Mumma allegedly demanded that Lawless remove every e-mail address in Omega’s files containing domain names listed on a site Mumma runs called OptOutByDomain.com. Lawless reportedly said he would do so right away, but Omega’s IT department told the attorney removing all the addresses would be difficult and they weren’t immediately removed.

After Mumma continued to receive e-mail from Cruise.com at an address he refused to supply to Lawless for suppression, Mumma allegedly threatened in a letter to sue Omega for at least $150,000 for sending his company six unsolicited e-mail messages unless Omega settled for $6,250. After Omega failed to pay, Mumma posted a report online accusing Omega and its owners Daniel and Gloria Bohan of being spammers. The Bohans then turned the tables on Mumma and sued him in federal court for defamation. That suit is pending.

A self-described tireless litigator, Mumma runs the Web site SueASpammer.com. He is just the type of litigious nuisance Can Spam was designed to protect businesses against.

In a grandstanding press release published in 2005, Mumma said: “The most shocking thing about spam today is how many big and well-known companies are using spam, but after they’ve been caught red-handed, you’d think most of these spam offenders would apologize, quit spamming and make every effort possible to settle out of court. … Today’s spammer tends to think it will escape prosecution because they’ve never been prosecuted. It has a false sense of security because nobody has come along and legally knocked it off its high horse.”

The battle with Omega has reportedly drained Mumma financially. It would seem someone else has been knocked off his high horse.