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Another Spam Case Lost in Washington, or Gordon Strikes Again

John Levine

Bennett Haselton, who runs the Peacefire anti-censorship site, is one of the more successful anti-spam litigants. He says he's filed about 140 suits, mostly in small claims court, and has won the majority of the suits that got far enough to be decided on the merits. But last month, in Federal court in Seattle, he lost a suit against Quicken Loans that he should have won, partly because of his own mistakes, but largely because of the pernicious effect of Gordon vs. Virtumundo.

Jim Gordon was an anti-spam enthusiast who sued bulk mailer Virtumundo, and did a vast number of foolish things, in the process greatly annoying the judge who handed down a sweeping decision against him, which was subsequently upheld on appeal by the Ninth Circuit. Gordon was a professional plaintiff who used a rented server, which had no users other than himself, to collect spam with the primary goal of suing people. In the decision, reiterated in the appeal, the court held that to have standing under CAN SPAM you have to show actual damages from the spam, and have to show that you tried to filter the spam out. Actual damages make some sense, but requiring filtering is just wrong, since it flips the point of CAN SPAM on its head — the only reason we have to filter is that people send us the spam that CAN SPAM presumably is intended to deter.

In the Peacefire case, the court decided that the Gordon precedent applies to Haselton, who is also the only user of his system, and similarly found that he had no standing to sue. Having read a fair number of the court documents, I have to say the court came to the wrong decision. Although Haselton is Peacefire's only user, he has a substantial business unrelated to his anti-spam suits, he has an active mailing list of 90,000 people around the world who use his anti-censorship service, and clearly uses his e-mail system both to send mail to them and to receive significant amounts of mail from them. Haselton, like Gordon and a lot of other people including me, uses a catch-all setup on his mail server, so he receives mail sent to any address at peacefire.org. The defendant claimed, and the judge believed, that this was soliciting spam, which is, again, just wrong. Spam does not float around in the æther, awaiting a catchall to suck it into an inbox. Every piece of mail, spam or otherwise, is sent to a specific address, and if it arrived in Haselton's mailbox, it's because the sender addressed it to a peacefire.org address. In his testimony, Haselton explained his reasons for using a catchall, which are the same reasons I do. One is to receive mail that is slightly misaddressed, e.g. to benett with one "n" rather than two. Another is to provide unique addresses when he signs up for something at a web site, so he can recognize mail from that site and whoever else they give the address to. This is all utterly standard and has been for well over a decade.

Haselton also explained why he doesn't use filters: all the one he's tried have blocked an unacceptable amount of wanted mail, particularly since unlike most people in the US he gets a lot of mail from India and China, which spam filters tend to block. I suspect that his experience says as much about his limited ability to manage his mail system as it does about the inherent failings of filters, but he has a legitimate business reason not to filter. Even if the court accepts the Ninth District's faulty reasoning about mail systems having to filter (which it does, being in that district), Haselton's situation was clearly different from Gordon and other small mail systems. Haselton also rebutted claims that he's a professional plaintiff, noting that he spends far more time running Peacefire than suing people, and in any event his track record of wins shows that his suits have merit.

Having said all that, I also have to admit that Haselton made some poor moves of his own. The Gordon appeal was decided while this case was in progress, at which point Quicken promptly used it to move for dismissal. Haselton's response was about one sentence saying we already explained why that's wrong. In fact he did, but as the decision said, "The Court is not required to comb through the record to find arguments and evidence that might support plaintiffs' position." It would not have been hard to put a summary of his prior testimony in the response to the motion, with references back to the original deposition. Further harming his position, Haselton argued that the defendants had agreed to settle, and the court should enforce that settlement. Maybe they did, but the record doesn't support it, and he should have had arguments for that eventuality.

It's not clear to me whether it's worth appealing this case or whether the combination of Haselton's mistakes and the fact that it's be the same appeals court that decided Gordon make it unlikely that they'd take a fresh look at the evidence. But I'm sure not going to sue any spammers in Washington.

By John Levine, Author, Consultant & Speaker. More blog posts from John Levine can also be read here.

Related topics: Law, Spam

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