ISPs launch legal attack on world

Four leading Internet service providers (ISPs) have filed six lawsuits against hundreds of defendants who they are calling the world’s worst spammers, including a Kitchener, Ont.-based man and his two sons.

Yahoo Inc., American Online Inc., EarthLink Inc. and Microsoft Corp. jointly announced on Wednesday the first lawsuits under the new U.S. anti-spam law called Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) — an effort to crack down on unsolicited e-mail. CAN-SPAM came into effect Jan. 1.

The CAN-SPAM law provides new enforcement tools for e-mail, ISPs and law enforcements, and criminalizes specific tactics spammers use to spread junk e-mail, according to a statement released by the four companies. The law allows for penalties against large-scale spammers.

“If you’re a spammer…this is not a great day for you,” said Randall Bow, AOL executive vice-president and general counsel. Ultimately, we’re going to locate you and sue you.”

In the lawsuit, Yahoo alleges, Barry Head and his sons Eric and Matthew, who all live in the Kitchener area, were on the company’s “most wanted” spammer list for sending millions of spam messages.

In January 2004, Yahoo Mail allegedly received approximately 94 million e-mail-messages from The Head Corporation — a collection of three companies operated by the Head family which includes Gold Disk Canada Inc., Head Programming Inc. and Infinite Technologies Worldwide Inc.

Charges in the lawsuit include disguised identity; unsolicited commercial messages including solicitations for life insurance, mortgage and debt consolidations; deceptive subject lines; sold personal data, where the defendants allegedly collected personal information and sold the data; and false domains and font tricks to hide randomized text in an attempt to circumvent the Spam guard filter.

The Heads could not be reached for comment at press time.

Although many of the defendants use computers outside of the U.S. to send spam, the companies believe they will be able to use the CAN-SPAM law to bring the defendants into U.S. court, said Nancy Anderson, deputy general counsel at Microsoft.

Spammers who think the U.S. can’t prosecute them because they operate offshore believe in a “myth,” Anderson said. Their spam causes damage to U.S. ISPs and consumers, she added.

The companies said that beyond today’s major enforcement efforts, spam continues to drain time, resources and network space from online companies and inhibit the online experience of consumers across the medium.

“We’re only a couple of subpoenas away from standing on someone’s doorstep,” said Les Seagraves, vice-president, chief privacy officer and assistant general counsel at EarthLink.

Bernice Karn, a partner at Cassels Brock and Blackwell LLP in Toronto, said the U.S. is proporting to have a lot of extra territorial jurisdiction and to regulate the activities of people around the world, but the reality is, they can’t.

“U.S. jurisdiction ends at the border,” Karn said. “If I were acting for the [Canadian] defendants, the first thing I would be arguing is that they [U.S] courts have no jurisdiction over me and it’s not the appropriate forum to bring the case and therefore it should be thrown out.”

She said for these types of jurisdictional cases, the process to determine if U.S. law can have any effect on anyone outside of that country will be a lengthy one. Karn explained that she was surprised the major ISPs in the U.S. didn’t start applying CAN-SPAM within the U.S. first.

“It’s a basic rule, when you’re suing people, whether its in this kind of legislation or anywhere else, the practical reality is that you try to sue where the defendant is so you can get at the defendant’s assets,” she said.

Karn said she isn’t entirely sure the CAN-SPAM legislation will do a lot in the end to regulate the delivery of unsolicited mail.

“There seems to be a lot of ways that spammers can get around it,” she said, adding that technical measures have to be taken to combat spam.

“I think that at the end of the day that will be more effective than any kind of legislation,” she said.

Tristan Goguen, president of Internet Light and Power (ILAP) — an ISP in Toronto, said he applauds any effort on the part of law enforcmenet agencies to bring spamming to the public view and to put pressure on large-scale spammers.

“I think we are going to need to have a mix of solutions, both legal and technical to solve these problems,” he said.

The four U.S companies formed an anti-spam alliance in April 2003.

Each company announced its own anti-spam lawsuits, often against unknown individuals listed at “John Doe.”

– With files from IDG News Service

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