Anti-Spam Advocates Win and Lose

Gretchen Gallen
BOCA RATON, Florida – In one of the first lawsuits of its kind, EmarketersAmercia.org, an anonymous group of email marketers, filed a suit in April against three leading anti-spam companies and nine people associated with those companies seeking $75,000 in damages.

This week a U.S. District Court Judge dismissed the suit, although he requested that the anti-spam defendants pay all legal bills associated with the case. Originally, the defendants had requested that the plaintiffs, in this case EMarketersAmerica, pay all attorney fees.

Among the defendants were UK-based Spamhaus, SpamCop, and the Spam Prevention and Early Warning System, all of which have developed highly sophisticated software for blocking and tracking unwanted email. All three companies are known industry-wide for maintaining blocklists of spammers, which are then passed along to Internet Service Providers (ISPs).

The original lawsuit was based on the allegation that the anti-spam advocates had interfered with pre-existing contracts between the group of anonymous marketers and ISPs who eventually blocked those marketers from their networks.

"They're interfering with a contract between the members of our association, the tier-one providers, and the American people," stated Mark Felstein, attorney for EMarketersAmerica. "I believe they're doing it for their own financial gain."

Felstein incorporated Emarketersamerica.org on March 10, 2003, and while he declined to name who his clients were, he said that they are all Florida-based businesses that run electronic marketing operations.

The defendants in the case claim that the anonymous group represents a group of email marketers known for sending unsolicited pornographic and sex-related emails.

At one point in the proceedings, the plaintiffs filed a motion to dismiss their own lawsuit, requesting that the suit be dismissed with prejudice, meaning that the plaintiffs cannot bring similar charges against these individuals in the future.

Reports indicate that the reason behind the request for dismissal was based on anti-spam legislation that could come into effect by January 2004, making many email marketers liable for unsolicited email. The plaintiffs in the case realized that if that legislation is passed, they have no grounds for a lawsuit against companies trying to enforce the same protection for email recipients that the Federal Government intends to support.

"While I am disappointed the court did not impose attorney's fees against Felstein or his clients, I am nonetheless elated by our clear victory in vindicating the rights of spam fighters," lead defense attorney Pete Wellborn was quoted as saying.

It was reported that Wellborn reduced his attorney fee by nearly half following the judge's decision to make the anti-spam defendants pay their own legal fees. His gesture was said to be his contribution to the "war on spam."

Since many spam filters function as nets and often block out a great deal of email that does not fall under the "spam" category, a recent push among ISPs has been to enforce spam-fighting efforts that allow legitimate senders of email to identify themselves before gaining access, while bouncing back mail from senders who choose to remain anonymous.

Microsoft, America Online, Earthlink, and Yahoo! have been in talks since April of this year on how to define spam-fighting standards.