Nobody expects the spamish inquisition

By Ed Duggan
South Florida Business Journal
May 18,2003

In a real combat, civilians are called "collateral damage." In the spam wars, it is legitimate e-mailers who are getting the tag.

When computer users started getting saturated with spam - unsolicited, bulk e-mail - the anti-spammers fought back.

Spammer block lists, litigation, and state and federal anti-spam legislation are just a few of the tactics in the increasingly bitter war.

The combatants include computer users, spammers, anti-spam block list providers like Spamhaus and SPEWS (Spam Prevention Early Warning System), Internet service providers, and permission-based e-mailers.

Now legitimate e-mailers say they are getting hurt and are crying unfair.

"It's getting out of hand," said David Bates, an attorney in the West Palm Beach office of Gunster Yoakley & Stewart. "With the proliferation of anti-spam laws by the states, it's easy for legitimate, permission-based e-mail marketers to run afoul of the myriad of new laws."

One of his South Florida clients was sued by a law firm in Utah, claiming the firm was sending spam under a new law passed in the state. The Utah law calls for damages of $10 to $50 to a spam recipient, but the law firm contacted Bates' client and threatened a class action suit unless the e-mailer settled for $6,500.

"That Utah law firm has filed over 2,500 suits - it's a racket, a scam, that is being repeated in other states," he said. "Fortunately, my client had impeccable records and could show that the e-mail was sent after the recipient had opted in and before he had opted out."

Typically, the lawsuits are filed in small, remote towns where it is expensive to defend and difficult to secure co-counsel.

"Legitimate companies must defend themselves from terrorists who have graduated from law school," Bates said.

All factions have their points and virtually everyone would like to see spam go away.

The initial sparring took the shape of simple complaints to Internet service providers, the companies that host the servers that handle e-mail from customers who may include spammers.

When the service providers could not or did not respond fast or thoroughly enough, e-mail block lists were developed by individuals and groups that zeroed in on known spam addresses. These are made freely available online to networks and computer users.

As spammers zigged and zagged on the same service providers' servers, the lists were expanded from single addresses to blocks of addresses. That resulted in non-spammers' mail being blocked as well. ISPs felt pressured to get rid of suspected spammers.

Boca Raton attorney Mark Felstein felt the wrath of the anti-spammers and guilt by association. He registered the domain name and parked it with GoDaddy Software, a Scottsdale, Ariz.-based Internet service provider. Complaints and a threat to add GoDaddy's server addresses to spam block lists were apparently enough for GoDaddy to tell eMarketersAmerica to go, daddy.

"While eMarketersAmerica has never sent e-mail, let alone spam, the registrar of their Web site, GoDaddy, was blacklisted by SPEWS, Spamhaus and others," said David Hart, 54, a New York City-based quality management consultant. "Frankly, that represents an unconscionable effort to silence critical speech. I would point out that GoDaddy registered a number of racist sites including and nobody is suggesting that they be sanctioned for doing so."

Not so, said Steve Linford of Spamhaus via email. "Spamhaus has at no time ever blacklisted either GoDaddy nor eMarketersAmerica, nor has anyone from Spamhaus even spoken to GoDaddy about eMarketersAmerica, nor would we have any reason to since eMarketersAmerica was not spamming."

An e-mail to Felstein from Ben Butler in the "Spam and Abuse Department" of GoDaddy Software dated April 24 said: "As I am sure you are aware, we have a no-tolerance policy against spam and network abuse. We have received notification that our IP space has been blacklisted as a result of association with your domain name. Our network connectivity and ability to reach customers has been compromised as a result of your domain, and we have sufficient reason to believe that further connectivity issues may well occur as a result of association with, and providing DNS [domain name services] for this domain name. We consider this to be an abuse of our services, and therefore against the terms of our service."

Butler declined to discuss the heave-ho given to the site.

Felstein said that GoDaddy Software would be added as a defendant in the suit filed against a group of anti-spammers last month.

"We have an adamant no-spam policy at GoDaddy," said Christine Jones, legal spokeswoman for the firm. "We don't take action unless questionable activity comes to our attention."

Some of the anti-spammers contend that Felstein is a shill for spammers, including Boca Raton-based executive Eddy Marin, which Spamhaus characterizes as the "No. 1 spammer in the world."

Both Felstein and Marin denied the accusations, although Felstein said Marin has been a client.

EMarketersAmerica was registered by Felstein as a non-profit trade association to represent e-mail marketers, although he won't release members' names for fear of retaliation from the anti-spammers, he said.

A month after forming the association, Felstein filed suit on its behalf against a dozen anti-spam defendants he claimed had injured the association's members.

Most of the anti-spammers have joined in an answer to the suit and deny all the allegations of wrongdoing.

They are represented in the suit by attorneys Samuel A. Danon, with Hunton & Williams in Miami, and Paul F. Wellborn III, of Wellborn & Butler in Atlanta.

Management consultant Hart said his firm represents no e-marketers, but it is reviewing the spam situation for a number of post-secondary school clients.

He feels that SPEWS, one of the anti-spammers named in's suit, is the most draconian in its zeal to curb the tide of unsolicited commercial e-mail.

"SPEWS blocks the IPs of spammers so that subscribing systems reject the incoming e-mail," Hart said. He objects to the secrecy involved with SPEWS and the lack of appeal from the anti-spammers blacklists.

"Much of the mail that the blacklists consider to be spam is entirely lawful in those states that have anti-spam laws," he said. He called SPEWS accountable to no one and its criteria arbitrary and vindictive.

"In fact, nobody will admit to running SPEWS," Hart said.

"Nobody would argue that people do not have the right to block mail in any manner that they choose," he said. "The issue is the conduct and process of a third-party blacklister, their lack of accountability and the potential for abuse."



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