DNS Abuse Forum - March 16

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Facebook Wins $800M Against Spammer. So What?

In a widely reported court case, Facebook won an $800M default judgment and injunction against a Montreal man named Adam Guerbuez, who has a long and sordid history. But it probably won't make any difference.

The problem is that he's in Canada. The $800M is for violations of the CAN SPAM act, but Canada doesn't have any laws comparable to CAN SPAM. (Indeed, they have no laws against spam at all, other than the weakly enforced PIPEDA privacy law.) This means that should Facebook try to enforce the injunction in Quebec, he'd have a reasonable shot arguing that what he did wasn't against Canadian law, hence it's not collectible.

Facebook's original complaint also invoked Federal and state computer tampering laws, but the judgment doesn't refer to them. The judgment also enjoins Guerbuez from ever using Facebook again, so if he does, Facebook can go back to court, get him cited for contempt, and try to enforce that in Canada. They'd have a better chance doing that, but who knows how long it will take.

As has become increasingly apparent, the key to legal success against spammers is close international cooperation, since the various pieces of illegal spamming operations, botnet infections, botnet spamming, order collection, and making and delivering goods are often spread all over the world. You'd expect Canada and the US to work well together here, but for some reason, the coordination so far has been less than impressive.

By John Levine, Author, Consultant & Speaker

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"he'd have a reasonable shot arguing that By John Berryhill  –  Nov 25, 2008 9:59 am PST

"he'd have a reasonable shot arguing that what he did wasn't against Canadian law"

Enforcing US civil judgments in Canada, or vice versa, does not work that way.  A Canadian court is only going to be interested in whether the US court had proper jurisdiction over the matter, and afforded procedural due process.  In this instance, a Canadian court is not going to ignore that the activity underlying the claim was conducted in the US by the defendant, and properly subject to US jurisdiction.  Whether the substantive law is different in Canada is a non-issue.

But the defendant was in Montreal the By John Levine  –  Nov 25, 2008 10:01 am PST

But the defendant was in Montreal the whole time.  How does a US court have jurisdiction over him?

A US court will find personal jurisdiction By John Berryhill  –  Nov 25, 2008 10:17 am PST

A US court will find personal jurisdiction over anyone who conducts activities in the US leading to a legal claim.  Believe it or not, if for example, you are in Country X, and you enter into a contract (as any Facebook user does) having a situs in the US, then you can be sued in the US for conduct relating to that contract, and the judgment is enforceable through the relevant international agreements on enforcement of US judgments in Canada.

Try this

If I stand on one side of the Canadian border and lob rocks at you in the US, you certainly can sue me in the US for your injuries, and you can certainly collect that judgment against me through a Canadian court.  At that point, as long as I had proper notice of the US action, I will not be able to defend against the substantive claim in Canada.  My defenses will be limited to a very narrow set of mostly procedural challenges.

Foreign entities are sued all of the time for injuries caused in the US, under US law. That type of situation is the entire point of the Haguee Convention on International Service of Process, and other mechanisms for conducting litigation involving parties in different countries.

...and by "conducts activities in the US", By John Berryhill  –  Nov 25, 2008 10:19 am PST

...and by "conducts activities in the US", I mean to be inclusive of activities which may be physically conducted outside of the US, but which incur injury in the US.

Oh, wait, Quebec is different By John Levine  –  Nov 27, 2008 8:34 am PST

A friend who is familar with Canadian law points out that the defendant is in Quebec, where the rules are surprisingly different from the rest of Canada.

See my updated blog post.


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