Critics said the move was a PR smokescreen aimed at diverting attention from the fact that the company was simultaneously trying to weaken California state legislation that would give consumers the right to sue spammers.
While Microsoft general counsel Brad Smith stood alongside Washington state attorney general Christine Gregoire at a press conference announcing the lawsuits, Microsoft representatives were persuading California lawmakers to change pending spam law.
California state senator Debra Bowen, author of bill SB-12, which would allow California consumers to sue when they receive unsolicited commercial email, said Microsoft, AOL and Yahoo, which are opposed to the bill, don’t want to ban spam.
She said: They want to license it and make money from spammers by deciding what’s ‘legitimate’ or ‘acceptable’ unsolicited commercial advertising, then charging those advertisers a fee to wheel their spam into your e-mail inbox without your permission.
According to a Bowen spokesperson, Microsoft persuaded the California Assembly to suggest amendments to SB-12 that would only allow a consumer to sue when they could demonstrate actually damages, and to delay a vote on the bill for two weeks.
While receiving spam is a major annoyance, most California internet users have flat-fee internet connections and most of the costs of spam are incurred upstream. Therefore actual damages are either imperceptibly small or impossibly difficult to prove for the average consumer.
Microsoft spokesperson Sean Sundwall said Microsoft’s position is that the amount ISPs can sue for under the bill, currently capped at $25,000, should be higher, and the amount consumers sue for, currently through the roof should be lower.
It’s not that we want to not give consumers the ability to sue, we want to limit the damages they’re able to collect, Sundwall said. He said that the bill in its current form would open up companies to massive liability for simple mistakes.
Consumers, Sundwall said, would not be likely to go after spammers that have hidden their identities well. They would sue the deep pockets, the Microsofts and AOLs of the world, if they received an accurately labeled email they perceived to be spam.
Microsoft also dislikes how SB-12 defines pre-existing business relationship, limiting it to three years following a transaction. Sundwall said the bill would have prevented Microsoft emailing Windows 98 users to tell them about Windows XP, for example.
One argument in favor of allowing consumers to sue is that the alternative is waiting for overworked attorneys general or ISPs to sue on their behalf.
Microsoft, for example, is only now employing the five-year-old anti-spam laws in its home state of Washington, despite the fact that its email services are some of the most abused by spammers.
Microsoft yesterday filed 15 lawsuits against alleged spammers, so it certainly cannot be said the company is doing nothing to tackle the problem. Thirteen suits were filed in the US, mostly in Washington, and two were in the UK.
The UK suits leverage data protection law and allege the illegal harvesting of email addresses to populate spam lists. The single suit filed in California makes claims of trademark infringement related to Windows logos.
All the lawsuits filed in Washington involve allegations of deceptive practices, such as spoofing headers and misleading users into believing they requested the spam, due to the limitations of the Washington law.
Microsoft’s Smith said the cases are really only a starting point that focus on substantial and serious… in some cases deceptive practices. He claimed the defendants are responsible for two billion spams in total, less than one day’s load at Hotmail.
Smith said the US lawsuits were possible because of the farsighted legislative approach in the state of Washington. He said that 12 out of the 15 suits were filed under the Washington state spam statute.
That law makes it illegal to send unsolicited commercial e-mail that has been addressed in a false or misleading way or has a deceptive subject line intended to conceal the message’s true content according to attorney general Gregoire’s web site.
Gregoire says: While many unsolicited e-mail messages are annoying, not all fall into the illegal category. The header information must be falsified or deceptive in some way. Microsoft characterizes this as strong.
We need strong laws like we have here in Washington, Smith said. As a company we believe the time has come for federal legislation as well… [that will] empower state attorneys general and ISPs like Microsoft to bring cases like we are here today.
The issue of federal legislation is where the opinions of Microsoft and attorney general Gregoire diverge. Gregoire wants state laws to remain intact, whereas Microsoft is pushing for federal preemption, or negation, of state law.
Gregoire is also in favor of consumers getting the right to sue. She said: If the only tool in the toolbox is for state attorneys general to bring an action, we will lose this war.
Addressing the subject of SB-12 during yesterday’s press conference, Smith said: If there is a preexisting business relationship, and as long as you are given the option to opt-out it should be permissible.
He said stronger laws were important, as long as they do not stifle opportunities for new industries, adding: I don’t think we should throw the baby out with the bathwater just because there’s a lot of bathwater here.
Smith rounded up by saying: I don’t think war will be over, but will see some measurable progress in the next 12 months.
An Assembly vote on the California bill, which has already passed the Senate, has been postponed until July 1 after yesterday’s events. Senator Bowen is likely to adopt some Microsoft amendments, though possibly not all, in order to push the bill through.
Source: Computerwire
