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March 13, 2006
Judge flunks lawsuit against diploma mill
Illegal spammers and their sponsors got a rare court victory last week. An unaccredited university that used the service of proxy-abusing, header-forging, hash-busting spammers has successfully fended off a federal lawsuit from a small California ISP.
The U.S. District Court for Northern California granted a summary judgment March 8 on behalf of Kennedy-Western University (KWU) in a lawsuit brought by Hypertouch, Inc. under the 2003 CAN-SPAM act.
According to the ruling, KWU did not violate the federal anti-spam law because the university didn't know that spammers it hired would violate the CAN-SPAM Act, nor did it consciously avoid such knowledge.
There's ample evidence that spams sent on behalf of KWU flagrantly flouted CAN-SPAM. But the court seemed convinced that "KWU actively seeks CAN-SPAM Act compliance from the marketing agencies that it hires." What's more, the court accepted KWU's argument that it wasn't aware that the spammers mailing on its behalf were breaking the law.
Yet it seems clear that KWU directly monitored the results of the illegal spammer's campaigns. Most spams on behalf of KWU contain customized URLs showing that KWU issued affiliate IDs to spammers to track traffic sent to the KWU site. For example the URL in this archived KWU spam references this page at KWU's web site, which includes the following HTML:
input type="hidden" name="COID" value="BCNTW"
Apparently this form data specifies the affiliate ID for Boca Networks, a Florida company blacklisted by Spamhaus. (Googling "kw.edu/ref/default.asp?COID=" produces lots of such affiliate IDs.)
KWU made its case in part thanks to a cadre of rather unusual expert witnesses. One such expert, Jason Rines, spent time himself on the Spamhaus Block List. In court filings, Rines suggested that Hypertouch owner Joe Wagner may have doctored the headers of emails he provided as proof of KWU's illegal spamming.
Despite its victory, KWU lost a small but significant tactical battle. The university's lawyers sought to show that Hypertouch isn't an Internet service provider and therefore had no standing to file lawsuits under CAN-SPAM. But the ruling said that Hypertouch, which has sued several spammers, qualifies as an ISP because it maintains its own email servers and provides accounts to users.
That aspect of the ruling is important because many spammers today are apparently hoping to dodge lawsuits by avoiding spamming big companies like AOL, Microsoft, and the like. It's common to see want ads on the SpecialHam.com spammers forum from bulk emailers looking for mailing lists containing "small domains."
But, on the whole, the ruling last week by U.S. District Court Judge Susan Illston is certain to create unhappiness among spam opponents.(You can read that headline above two ways.) Wagner says he plans to appeal and also will file a new lawsuit against KWU in California state court.
[Update 3/14: Joe Wagner writes to note that the district court's ruling puts plaintiffs who sue under CAN-SPAM in a Catch-22 situation. The judge ruled that Hypertouch failed to show that KWU "consciously avoided knowledge" that their hired spammers had or would violate the law. And yet KWU offered no evidence that it checked the headers of its spammers' emails, or made sure their domains were registered using correct information. "The judge's ruling makes no sense ... We are thus optimistic about the likelihood of success for our appeal," says Wagner.
Wagner also expressed outrage at the assertions by KWU's experts that Hypertouch may have doctored emails used as evidence. Wagner notes that copies of the same spams have been received and posted by other individuals in places such as the spam sightings newsgroup. "That's why it was so shocking [KWU would] make, under oath, the accusation that Hypertouch had perpetrated a fraud upon the court," says Wagner.]
Posted by brian at March 13, 2006 10:05 PM
