Terry Zink's Cyber Security Blog

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Nice work if you can get it

Nice work if you can get it

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The Associated Press has run a story today about an anti-spam crusader by the name of Daniel Balsam who makes his living by suing spammers.  Here’s some excerpts from the article:

Man quits job, makes living suing e-mail spammers

Daniel Balsam hates spam. Most everybody does, of course. But he has acted on his hate as few have, going far beyond simply hitting the delete button. He sues them.  Eight years ago, Balsam was working as a marketer when he received one too many e-mail pitches to enlarge his breasts.  Enraged, he launched a Web site called Danhatesspam.com, quit a career in marketing to go to law school and is making a decent living suing companies who flood his e-mail inboxes with offers of cheap drugs, free sex and unbelievable vacations.

"I feel like I'm doing a little bit of good cleaning up the Internet," Balsam said.

From San Francisco Superior Court small claims court to the 9th U.S. Circuit Court of Appeals, Balsam, based in San Francisco, has filed many lawsuits, including dozens before he graduated law school in 2008, against e-mail marketers he says violate anti-spamming laws.  His many victories are mere rain drops in the ocean considering that Cisco Systems Inc. estimates that there are 200 billion spam messages circulating a day, accounting for 90 percent of all e-mail.

Still, Balsam settles enough lawsuits and collects enough from judgments to make a living. He has racked up well in excess of $1 million in court judgments and lawsuit settlements with companies accused of sending illegal spam.

This is quite interesting.  Companies that spam are able to get away with it many times because it is a lot of work to go after them in court.  However, if someone goes after them via litigation then perhaps the cost of doing business (for the spammer) no longer outweighs the revenue generated by sending out the spam.

Yet others claim that Balsam has gone too far and instead has manipulated the legal system.  He’s almost an “ambulance-chaser” of the anti-spam world:

His courtroom foes contend that Balsam is one of many sole practitioners unfairly exploiting anti-spam sentiments and laws. They accuse him of filing lawsuits against out-of-state companies that would rather pay a small settlement than expend the resources to fight the legal claims.

"He really seems to be trying to twist things for a buck," said Bennet Kelley, a defense lawyer who has become Balsam's arch nemesis over the years in the rough-and-tumble litigation niche that has sprung up around spam.  "There is nothing wrong per se with being an anti-spam crusader," said Kelley, who has sued Balsam twice for allegedly violating confidentiality terms in settlement agreements. "But Dan abuses the processes by using small claims court.

"A lot of people will settle with him to avoid the hassle," Kelley said.

But does this criticism hold up?  Is Balsam abusing the system and is merely out to make a quick buck?  Well, spamming is illegal.  According to Balsam, he mostly sues companies that he accuses of violating California’s anti-spam law.  If Balsam were taking the defendants to court, why don’t any of them ever fight the charges and get them dropped?

Among other restrictions, the law prohibits companies from sending spam with headers that misleads the recipient into believing the e-mail is noncommercial or comes with offers of "free" products that aren't true.  The law also requires a way for Internet consumers to "opt out" of receiving any more spam from a sender.

Thus, what Balsam is doing (at least according to this article and website) is finding companies that are violating state law and going after them using the legal means to do so.  If the companies were not sending mail that contains those characteristics (indeed, if they were CAN-SPAM compliant, which isn’t that high a bar to attain), he wouldn’t be going after them.  Furthermore, in the above quote, Kelley is a defense lawyer defending his clients against Balsam’s lawsuits.  He has a non-biased motivation to criticize Balsam’s actions.  He has to say this because his clients are paying him to defend them.  It would undermine their cases if Kelley conceded anything in public.  It is doubtful whether or not Kelley condones their actions, he’s just doing what he is being paid to do.  Right and wrong has nothing to do with his “criticisms”.

Fighting companies that are spamming in civil court is a tactic that a lot of companies have done.  Microsoft has gone after click-frauders, and Facebook has won massive judgments against spammers.  The actions of Balsam are not unprecedented, although it is unusual that he has done it so often.  I think what bolsters his case is that he can provide evidence that the company is spamming:

Balsam certainly isn't the average Internet consumer.   When San Mateo Superior Court Judge Marie Weiner in March ordered Trancos Inc. to pay Balsam $7,000 for sending spam that recipients couldn't stop, she noted that he has more than 100 e-mail addresses.

One of the pieces of evidence he has used is that he got the same piece of mail to 4 email addresses.  If you have multiple email addresses and you get the same one to all of them, it’s not much of a stretch to demonstrate that the sender cares little about whether or not the recipient wanted to receive the mail, they were more interested in sending bulk mail to as many recipients as possible.  Nobody would register 100 email addresses for a product, but a spammer would unscrupulously harvest email addresses in an attempt to increase their response rate.

Says Balsam, "I feel comfortable doing what I'm doing," Balsam said of the lawsuits against him. "And I'm not going away."

Well, at least here’s one person who is using the legal system to clean up the Internet.

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