Originally published on O'Reilly Network http://www.oreillynet.com/
Spammers Can't Hide Behind Affiliates
by Brian McWilliams, author of Spam Kings
In a case that tests a key provision of the U.S. CAN-SPAM law,
Microsoft has scored a legal victory against a Washington man alleged
to be one of the top ten spammers in the world.
A King County (Washington) superior court judge ruled that Robert
Soloway, operator of Newport Internet Marketing (NIM), was in default
on the spam lawsuit originally filed by Microsoft on December 18,
2003, against NIM and 20 "John Doe" defendants.
Soloway, 25, is ranked the world's eighth largest spammer by the
Spamhaus spam tracking and blocking service. Soloway and NIM have been
listed on the Spamhaus Register of Known Spam Operations (ROKSO) since
the list's inception in October 2000.
Soloway had argued that NIM's subcontractors -- otherwise known as
spam affiliates -- and not his company, were responsible for waves of
illegal spam cited in Microsoft's complaint. The messages included
"from" lines forged to make the messages appear as though they were
sent via Microsoft's MSN and Hotmail services.
Besides asserting that he was unaware that the subcontractors were
operating illegally, Soloway also claimed he didn't know their actual
identities, since his dealings with affiliates were conducted
exclusively over the ICQ chat service.
Microsoft filed a request for a default judgment against Soloway on
March 31, 2005, complaining that Soloway was playing "a shell game"
during the protracted, 15-month discovery process. Microsoft said
Soloway had failed to produce documents and other information
regarding NIM's dealings with subcontractors.
Soloway turned over a list of 67 ICQ numbers used by his affiliates,
but he provided no names, addresses, phones, or email addresses,
according to Microsoft.
"The evidence withheld by defendants ... goes to the heart of
Microsoft's case ... the only witnesses who can corroborate or
contradict Soloway's testimony are the subcontractors," stated
Microsoft in its filing.
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Table of Contents
Under the rules of civil procedure, a court can order a default
judgment against a party who fails to appear in court or to respond to
charges against him.
Judge William Downing agreed to Microsoft's request on April 8. "The
only issue that remains is the amount of damages Plaintiff Microsoft
is entitled to," stated the default judgment.
Microsoft's head anti-spam attorney, Aaron Kornblum, said Tuesday that
Microsoft is "finalizing our pleadings to include the damages amount."
But in an online interview this week, Soloway brushed off Microsoft's
apparent courtroom win.
"The fact is, they have no case, and I can honestly say with the
utmost confidence that there will not be a monetary damage awarded,"
said Soloway. He declined to elaborate on why he was so confident of
his position versus Microsoft.
Soloway claimed that he has always removed any MSN.com and Hotmail.com
addresses from his mailing lists and that he instructed affiliates to
do the same.
"One of my subcontractors ... clearly did not do what I hired them to
do. They broke the rules, and violated my policy," said Soloway.
"Should I be responsible for the actions of someone that didn't follow the
rules I gave to my advertisers?" he asked.
Under both federal and Washington State anti-spam statutes, the answer
apparently is _yes_; companies are liable for illegal spam sent on their
behalf by third parties.
In the case of CAN-SPAM, a firm is responsible if it "procured the
transmission" of the unlawful email. Under Washington's Commercial
Electronic Mail Act, companies are liable if they "assist the
transmission" of the illegal messages.
Many large spam operations rely heavily on affiliates, who are
typically paid a commission for any sales leads or purchases they
generate on behalf of the "sponsor."
Soloway testified to Microsoft that he has fired all his subcontractors
and now sends email himself using the Dark Mailer spam program
Soloway declined to comment on a recent bout of spam from his firm
that offered, "we email your web site to 2,500,000 opt-in email
addresses for free." A disclaimer in the spams stated, "the above
emailing is only free if you are a nonprofit organization that aids
child abuse victims."
Soloway disputed Spamhaus' appraisal of NIM as a top source of spam,
and he noted that Spamhaus director Steve Linford has publicly
admitted to assisting Microsoft in its litigation.
"Steve is making plenty of money from certain large corporations in
relation to PR," asserted Soloway, "so Microsoft could go 'look, we've
won a judgment against the top [spammer].'"
In October 2004, O'Reilly Media, Inc., released Spam Kings.
a.. Sample chapter 1, "Birth of a Spam King" (PDF), is available free
b.. You can also look at the Table of Contents (PDF) and the full
description of the book.
c.. For more information, or to order the book, go to our site.
Brian McWilliams is the author of Spam Kings and is an investigative
journalist who has covered business and technology for web magazines
including Wired News and Salon, as well as the Washington Post and PC
World, Computerworld, and Inc. magazines.
Copyright 2005 O'Reilly Media, Inc.