Thursday Jun 21, 2007
Anti-spam activists strike
Area men try unique tactic against ad firms
Last April, while Internet advertisers were schmoozing and boozing at an Adtech convention in San Francisco, some execs were caught unawares when they were served summonses at their booths in Moscone Center. Being called into small claims court in Palo Alto for sending unscrupulous spam takes some of the luster off money spent on lavish presentations.
On Monday, six of those served appeared before Judge John Madden and faced off with those who sued - Joe Wagner and David Cannon, both Ph.D. candidates in mechanical engineering at Stanford. Wagner lives in Menlo Park and also runs a private Internet company, Hypertouch. Cannon lives in Mountain View.
I've written about Wagner before, and his zeal about taking e-mail spammers to court for clogging e-mail pathways with various kinds of bogus messages. American e-mail users are the exception if they don't get more than a dozen spam messages a day. At one point, before I closed down an account, I was getting more than a hundred spam messages daily in what felt like a piranha feeding frenzy.
Wagner didn't have much success suing in traditional courts, so he switched to small claims courts, where his win rate has been much higher. In initial small claims court cases, lawyers can't be used and the cases are handled much more quickly. These courts are a remedy for the average Joe.
All those Cannon and Wagner summoned to the Palo Alto court were each sued for $15,000. Three settled beforehand for the combined amount of approximately $40,000. Wagner and Cannon have been giving their awards to charities such as Second Harvest Food Bank, San Francisco's Coalition on Homelessness and the Darfur Stove Project. This dispels the banter on some Internet blogs that Wagner's out for money alone.
On Monday, representatives for Valueclick, Media Breakaway (formerly known as Opt In Real Big), Livemercial, SubscriberBASE, Offerweb and Azoogle (with an office in Foster City) had flown in from all over the U.S. to fight what one rep told me was "for a matter of principle." Wagner and Cannon had served them papers in San Francisco because California law doesn't allow serving small claims court papers outside the state.
I must say that the company reps (including a lawyer or two, who weren't allowed to act in the capacity of lawyers) seemed a prosperous and confident bunch, eager to take on local interlopers.
In court, Wagner and Cannon listed their complaints against the companies, which all involved false representation:
_ Sending e-mail ads promising free goods such as gift cards or laptop computers (but poorly revealing the necessity of jumping through innumerable hoops) with the ultimate goal of harvesting e-mail addresses and personal information.
_ Providing misleading information in the headers of ad messages and using "throwaway" domain names.
_ Using the names of prominent businesses such as Victoria's Secret or J.C. Penny in subject lines to make messages appear to be from the namesake companies.
The companies aggressively attacked by casting doubts upon the methods of serving papers at the Adtech convention (once by dubiously claiming that the person served wasn't a company officer), by claiming that the cases weren't right for small claims court, by saying that sample e-mails presented as evidence might have been cut and pasted, and - the most traditional response - that the ad e-mails were sent by their affiliates and contractors, and that the mother companies weren't aware of any wrongdoing. They claimed their company ethics were above reproach, that they had people on their staff to ensure compliance with their rules, and that Wagner and Cannon should've notified them of any ad abuses early on.
When I talked with Wagner and Cannon after the court appearance, Wagner said, "These ad (companies) - I think spammers know which ones tolerate monkey business and which ones don't. (For example) Amazon.com has the biggest affiliate network in the world, but you never get an Amazon spam." Wagner re-emphasized that California law holds ad companies responsible for spam mailed on their behalf by affiliates and contractors.
The ad companies, perhaps expecting to face off in small claims court against ill-prepared plaintiffs with little evidence and legal knowledge, were probably surprised by the amount of preparation and legal knowledge brought to the table by Wagner and Cannon. I also noticed that Judge Madden was no stranger to Internet conventions and commerce himself, and seemed sympathetic to the cause of the two Stanford students. He took reams of paperwork from all parties involved and should be ruling on the cases by the end of the month.
What's interesting is that the ad companies are willing to spend more fighting the small courts claims than settling. Perhaps they're afraid of more activists using that venue to make them rein in their renegade affiliates and contractors - in the same way that tobacco companies are fighting hard to repel increasing numbers of health-damage cases.
Now, when's someone going to go after all those bogus get-rich-quick e-mails coming from Burkina Faso and the charming "you've won the lottery" messages from England?
Bil Paul's column appears Thursdays in the Daily News. Reach him at .