I've been wondering for long, as a background activity, how one could get
the various organizations on the network organized to make a class action
suit against spammers. After all,
1. The spammers' clients are easy to locate using real-world means. You
always get a phone or FAX number you can call to purchase the goods
that are being offered.
2. The spammers' clients, as opposed to the spammers, probably have some
money. Maybe not a mega fortune, but enough to pay the lawyer that
will sue them.
3. Once a client loses a spam-related lawsuit, spammers will be out of
business. They may also find themselves defending a lawsuit from their
clients, which might be sufficient to convince them that, if #2 is
likely, maybe they should retire before it's too late.
So far spammers have enjoyed relative legal impunity. I think the reasons
are:
1. No single organization got upset enough to actually go to court for a
silly spam. Spams are annoying, but we all have a job to do, and it
doesn't include suing spammers.
2. Other than large ISPs, no single organization can reasonably expect to
claim more than some $10k of lost manpower and machine time, which is
hardly worth going to court for.
3. Lawyers don't quite understand the Internet, so the lawsuit could be
long and costly, and the outcome could be random.
4. Organizations are worried about their reputation and don't want to
appear "fascist" and anti-freedom.
5. Last, but not least, people have been focusing all their energy on
punishing the spammers. While this may be the "right" thing to do, it
does not lead to a working plan, because most spammers are
individuals, often without a job, and it may be very difficult to
trace the spam to them if you limit yourself to evidence that will
hold in court (obviously their clients would have some record of the
payment, but guess what, they'd much rather you didn't have a case
against them, so they aren't likely to help). At least in the US, it's
much easier to prove that ads do origin from the company that later
takes people's money when they call the number in the ad.
Now let's say we had the following in place:
1. An anti-spam clearinghouse, which could be either a large existing
organization with on-staff lawyers who actually understand the
Internet (I'm thinking of large ISPs here), or then a newly formed
non-profit corporation.
2. Letters from a few hundred organizations in the US legally empowering
the clearinghouse to act as their agent when sending cease and desist
orders to spammers or their clients. In the case of a non-profit
clearinghouse, the organizations would have to enclose a check for say
$250 to finance the clearinghouse, but I don't think it should be too
difficult to sell universities on contributing $250 to fight spam.
Interested parties could also make larger (tax deductible) donations,
without having to get involved in the actual fire fighting.
3. Joe then posts a spam for the XYZ thigh cream that will make you look
20 years younger and give you cancer in the process for a one-time low
price. The clearinghouse sends a cease and desist order to XYZ on
behalf of all its members, demanding that no further advertisement be
sent to any of the lists at any of the hosts in any of the
corresponding domains.
From then on, there are several ways to proceed, depending on XYZ's
reaction. If they comply, you try to get paper evidence tracing the deed
to the spammer. Eventually one of them will be upset enough to be willing
to assist you. If they ignore the warning, you sue them for the lost
machine time, bandwidth and manpower, and/or for illicit telemarketing.
Lawyers can probably figure out a way to open a case given that XYZ
received valuable advertisement for which the clearinghouse's members had
to bear the costs against their express wishes. A $10k claim may not be
much, but if you multiply by even 100 members you're talking real money.
Enough money to make XYZ think carefully. The assumption here is that XYZ
has been selected with brain usage activated and is a real company, as
opposed to some smokescreen multi-level marketing joint that may or may
not have a full-time receptionist. XYZ probably has a very limited
understanding of the Internet and should settle rather than risk going to
court. Press release to alert future potential victims. No press release,
no settlement; sorry, the clearinghouse's mission in life is to alert the
world to the fact that spam is bad and doesn't work, so that people quit
offering spammers a job, and this can be done either amicably or the hard
way, but it has to be done. In addition, the clearinghouse will demand
evidence to trace the spammer to the spam. I don't see why XYZ wouldn't
want to provide it, given the press release. The least they can do is try
to look good and cooperative. "We at XYZ are truly sorry about what
happened. We really didn't know it would upset people and we fully
support the clearinghouse's effort in warning other innocent victims who,
like us, may be totally unaware of the perils of this form of
'advertisement', blah blah blah".
Given a PO + payment record, you can send the spammer a cease and desist
order, which will probably be ignored (unless the spammer decides to get
another job - another press release). There aren't all that many
spammers, so eventually you should have a repeat case on the same spammer
with evidence that stands in court, and you can sue him. Since the
clearinghouse's sole purpose is to fight spam, it doesn't really matter
if the spammer isn't rich enough to make the lawsuit worth your while.
Once one of them has to sell his car and house to pay legal bills, spam
will probably come to an abrupt end and the clearinghouse will have
accomplished its mission. You would probably want to keep it alive (but
dormant) for when the spammers come up with something new.
Finally, the clearinghouse must be adequately protected from retaliation
by spammers, and from other forms of interference. The following steps
sound like a good start:
1. The clearinghouse and in particular the lawsuits should be managed
either by new staff that will be dedicated to the cause, or by
volunteers employed in a field that doesn't have anything to do with
the Internet, and whose employers have given their full support in
writing. It should NOT be a part-time assignment for people employed
in an Internet-related company and who will constantly have to worry
about their employer's best interests or how corporate HQ might react
to this or that, what with the impending change in management after
the next board elections. They should be able to concentrate on their
mission without fearing for their job.
2. The people employed by the clearinghouse should have a legally binding
job offer from an interested party, offering them work for (say) 3
months in the event that the clearinghouse should lose a lawsuit and
go bankrupt. In other words, they should not have to worry about
paying their rent when making decisions on behalf of the
clearinghouse. Hopefully the clearinghouse will hire a very small
amount of highly clueful people who should not be worried about having
to find a job per se, just about paying the bills between two jobs.
3. The clearinghouse staff should operate from a specific host or domain
with a specially tailored mail system that does not accept mail from
mailing lists, unless they're listed in an exception file. Mail from
other lists is bounced with a "no such user" type error, a signoff
request could even be sent automatically. This prevents spammers from
flooding the victim's mailbox with spoofed subscriptions. The machine
running this mailer should be very fast so that mailbombing attempts
turn against the bomber, and dedicated to the task so that no one else
has to suffer. Bandwidth would presumably be donated by an interested
party (I'm thinking in terms of colocating a SMTP/POP server to which
the clearinghouse staff would connect via dial-up, ie no telco
charge). This machine would also host a web server.
All in all I think that all the necessary tools (technical, legal, press
awareness, etc) are available. The only thing that is missing is
motivation and manpower.
Many of you have asked me in private why L-Soft doesn't embark on a legal
crusade against spammers. While it's true that I don't think many
customers would object to seeing their money used this way, there would
still be a number of overwhelming obstacles. The first and most obvious
is that putting an end to spam is going to cost serious money (probably
over $100k) and take a lot of time (we're dependent on how fast the
courts can move). We have found a more cost effective and much more
expedient way to shield our customers from spam (and you will find that
the spam detector that ships with 1.8c is even more effective), so as far
as we are concerned spam is not a major problem, although there will
always be spams that get past the filter. It's certainly not a problem
worth spending $100k on. But even with additional funding to cover the
costs, there would still be serious obstacles. First off, L-Soft is a
for-profit corporation, like the spammers and their clients. This is a
case where the public opinion may, sadly, determine the outcome, and it
is important to prevent the spammers from turning this into a "XYZ Corp
wants to eat ABC Corp because they're getting in their way" type of
issue. A clearinghouse of (mostly) universities, on the other hand, would
not have that problem. Second, L-Soft sells anti-spam software solutions.
We don't want anyone insinuating that we're botching up the job using
their funding because we don't really care if spam goes away and just
want to prevent a competing and more diligent anti-spam organization from
being formed with these funds and taking away our leadership in anti-spam
technology. Finally, we have to consider the well-being of our employees.
Anyone you hire to lead an anti-spam clearinghouse will have to be
prepared for an assortment of death threats, random phone calls with
heavy breathing, etc. This is just part of the job. Heck, if I were the
lawyer drafting the contract, I'd make sure to add a special clause about
it :-) On the other hand, this kind of treatment is definitely not part
of the job at L-Soft, and we would like to keep it that way. We don't
want people to quit or just have nightmares or ulcers because of a
crusade which is not really ours. In the context of a large neutral
clearinghouse like the one I have described, however, we would be able to
contribute without problem.
Eric
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