more on Vicarious Spam

[Dave Farber <dave () farber net>]

Stew is a well known lawyer

-----Original Message-----
From: "sbaker () steptoe com" <sbaker () steptoe com>
Date: Mon, 16 Feb 2004 10:12:57 
To:"'dave () farber net'" <dave () farber net>
Cc:"Albertazzie, Sally" <SAlbertazzie () steptoe com>
Subject: RE: [IP] more on Vicarious Spam

Dave,

Actually, I think there's a difficult legal question here.  While Anne
Mitchell is right that CAN-SPAM applies to advertisers who hire spammers to
send their advertisements, it would be much harder to apply that provision
LEADS -- that is, to a legitimate business that simply buys a list of
"mortgage-ready" addresses from a spammer.  Thus, if the spammer sends out a
message offering refinancing and simply saves the email address of everyone
who responds, then provides the list of leads to the legit business, the
buyer probably doesn't fall under the advertisement provision.  

Of course, there would be problems trying to expand the law to cover this
evasion.  If I buy a list of names of people who have all expressed interest
in receiving information, that's an "opt-in" list.  Should I be responsible
for the millions of people who were illegally spammed to build the list?
How can I find out about or control this illegal spamming, which may have
occurred before I even began to do business with the spammer?

Stewart Baker

-----Original Message-----
From: Dave Farber [mailto:dave () farber net] 
Sent: Monday, February 16, 2004 8:01 AM
To: ip () v2 listbox com
Subject: [IP] more on Vicarious Spam



Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Mon, 16 Feb 2004 01:12:47 -0800
From: "Anne P. Mitchell, Esq." <amitchell () isipp com>
Subject: Re: [IP] Vicarious Spam
To: dave () farber net


Dave,

> A friend of mine is in the MORTGAGE business at a Fortune 500 Bank. We
> chatted about the huge flow of mortgage spam and how nobody would
> refinance from an email message. He said "yeah, we don't spam ourselves, 
> but we do get great LEADS from these guys."
>
> Does the current Anti spam legislation address vicarious spamming?

Yes, it absolutely does.  It's Section 6 of the CAN-SPAM Act (the language 
of which, as you know, I was involved in helping to draft:

SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAIL WITH FALSE OR 
MISLEADING TRANSMISSION INFORMATION.

  (a) IN GENERAL- It is unlawful for a person to promote, or allow the 
promotion of, that person's trade or business, or goods, products, 
property, or services sold, offered for sale, leased or offered for lease, 
or otherwise made available through that trade or business, in a commercial 
electronic mail message the transmission of which is in violation of 
section 5(a)(1) if that person--

  (1) knows, or should have known in the ordinary course of that person's 
trade or business, that the goods, products, property, or services sold, 
offered for sale, leased or offered for lease, or otherwise made available 
through that trade or business were being promoted in such a message;

  (2) received or expected to receive an economic benefit from such 
promotion; and

  (3) took no reasonable action--

  (A) to prevent the transmission; or

  (B) to detect the transmission and report it to the Commission.

---

For those of your readers interested, the proceedings of our recent "Spam 
and the Law" conference, including audio recordings and handouts, are 
available on our website, or from info () isipp com.

Anne


Anne P. Mitchell, Esq.
President/CEO
Institute for Spam and Internet Public Policy
Professor of Law, Lincoln Law School of SJ


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