A Federal Court's Preliminary Injunction Bans a Kingpin Spammer from MySpace: Why the Court's Ruling Was Correct
By ANITA RAMASASTRY
|Tuesday, Aug. 28, 2007|
MySpace recently gained a victory in court, when California-based U.S. District Judge Audrey B. Collins banned notorious spammer Sanford (a.k.a. "Spamford") Wallace from using the social networking site to bombard its members with unsolicited email. In the suit, filed in March of this year, MySpace claims Wallace illegally flooded the site with more than a million emails hawking his own Internet-gambling websites.
Collins issued a preliminary injunction - that is, an injunction issued prior to the final adjudication of the case that extends through the duration of the litigation. The injunction forbids Wallace and his business affiliates from creating or using MySpace profiles, sending private messages within MySpace or posting public comments. Wallace must also avoid suggesting in any commercial emails that he or his business ventures are affiliated with MySpace.
A court may grant a preliminary injunction only if it holds that the party seeking the injunction is likely to prevail in the lawsuit. The court also looks to the balance of hardships in scenarios where the plaintiff does, and does not, get a preliminary injunction. In this case, Judge Collins held both requirements were fulfilled. In this column, I will explain why she was right to do so.
Background: "Spamford" Wallace's History as a Spammer and a Defendant
As early as the late 1990s, Wallace's company, Cyber Promotions, founded in 1995, was blacklisted as a source of unsolicited email ("spam") that not only clogged user inboxes, but blocked the networks of many Internet Service Providers (ISPs). Wallace earned his nickname because of his open and high-profile pro-spam attitudes. Cyber Promotions clogged the inbox of many irate email users. At one point, Cyber Promotions was believed to be the number-one source of spam.
In 1997, several major ISPs, including AOL and Earthlink, sued Cyber Promotions. As part of a 1998 settlement with Earthlink, Wallace paid millions and agreed to stop spamming. And indeed, for a while, he shifted to an opt-in email marketing service.
By 2004, however, Wallace was in trouble again. The Federal Trade Commission sued Wallace and his newly formed company, SmartBOT, for first infecting computers with spyware and then offering to remove the spyware for $30; in 2006, the FTC filed another suit based on parallel allegations. Eventually, Wallace and his co-defendants were ordered to pay around $4 million in fines.
The Facts Regarding Wallace's Actions on MySpace
With respect to MySpace, Wallace used a new strategy: Rather than spamming general email accounts, he found a way to spam MySpace users repeatedly - far exceeding the site's limit for the number of messages that may be sent in one day.
MySpace's lawsuit claims he did so by creating more than 11,000 MySpace profiles that would churn out private messages and comments directing members to spoofed MySpace pages that requested their login information. (I discussed this type of scam, nicknamed "phishing," in an earlier column as well.)
This sneaky maneuver, according to MySpace, permitted Wallace to hijack at least 320,000 accounts, which he reportedly used to transmit 400,000 private messages and post 890,000 comments. Both the emails and the messages redirected MySpace users to the sites freevegasclubs.com and realvegas-sins.com, Internet gambling sites owned by Wallace affiliate Feeble Minded Productions.
MySpace claims that Wallace kept on spamming even after it sought the injunction from Judge Collins, submitting evidence that another group of 110,000 messages had been sent from 76,200 user accounts over the relevant time period.
Why Judge Collins Issued the Preliminary Injunction in Favor of MySpace
In its suit against Wallace, MySpace alleged that his actions violated state and federal laws, including the federal CAN SPAM Act and California's anti-spam and anti-phishing laws. It sought a permanent injunction barring Wallace and his affiliated companies from the MySpace site, in addition to unspecified monetary damages.
Wallace's main defense was that he - not MySpace - was likely to prevail on the merits because, he argued, messages sent to MySpace users do not qualify as "email messages" under the federal CAN SPAM Act, because MySpace addresses lack domain names and messages remained within the MySpace system, rather than being routed over the entire Internet.
Judge Collins, however, disagreed - and held that it was MySpace, not Wallace, that was likely to prevail on the merits of the suit. She deemed messages sent over MySpace to fall within "the Act's definition of an 'electronic mail message' sent to an 'electronic mail address.'" She reasoned that the plain meaning of "electronic mail address" requires nothing more specific than "a destination to which an electronic mail message can be sent."
In addition, Judge Collins interpreted the statute's references to "local part" and "domain part" as only one possible way to describe a message's destination. She added, "[a]s Defendant himself points out, at the time the Act was passed in 2003, electronic messages could be sent in many ways, including through 'instant messaging'…."
Looking to the balance of hardships, moreover, Judge Collins found that it strongly tipped in MySpace's favor. She noted that "[l]imiting spam is important because it clogs networks, uses up bandwidth, and degrades the user experience," and that "Plaintiff has already expended substantial time and money in combating Defendant's unsolicited messages and postings, and has dealt with over 800 resulting user complaints."
Why Would-Be MySpace Spammers Should Beware
Judge Collins's well-reasoned opinion is likely to be upheld on appeal and followed by other courts. Thus, would-be spammers should think hard before targeting MySpace - a foolish decision indeed.
In addition to winning the preliminary injunction against Wallace, MySpace also reached a settlement in 2007 that was reportedly over $2.5 million in a suit that accused TheGlobe.com of sending almost 400,000 spam messages to MySpace users from at least 95 shell MySpace accounts.
For both of these reasons, spamming MySpace is likely to prove not only foolish but costly - and rightly so. While some social networking sites may want to allow some kinds of communications between previously-unacquainted users, this kind of spamming violated site regulations, and egregiously exceeded what was reasonable.
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