--- From: "Anne P. Mitchell, Esq." <amitchell@private> To: Declan McCullagh <declan@private> Date: Tue, 28 Oct 2003 12:40:14 -0800 MIME-Version: 1.0 Subject: Another Insider's Comments Re: [Politech] An insider's analysis of the Senate's anti-spam bill Message-ID: <3F9E63AE.22551.5D57760@localhost> Hi Declan! Just a quick note - feel free to share it (no need for anonymity): > The "3rd party" section, an amendment by Sen. McCain in committee, > aims at companies who hire out spammers or separate themselves from > spammers by shell corporations, but knowingly benefit nonetheless. I worked with Sen. McCain's on the authoring of this bill - it being not all that dissimilar from the contributory and vicarious liability theories which I used against companies which were advertised in trademark-infringing spam while I was at Habeas. The advertiser accountability amendment as written (and passed) requires that the advertiser either knew, or should have known, that the sender was using methods in violation of the law. So, for example, the author above used the example of Pfizer knowingly benefitting from spam about their well known erectile dysfunction drug - liabilty would only attach to Pfizer if they had actually *utilized* the services of that spammer, or were somehow *actively* benefitting from it. If someone unbeknownst to Pfizer, and with whom Pfizer has no connection at all, just started raving about how great the product was, in a spam, Pfizer would not incur liability. This amendment was specifically included to get at those companies who advertise in spam, but manage to say "hey, it wasn't me who hit 'send'". An equally important aspect of this clause is that it provides an avenue to get at the offshore spammers - the vast majority of English- language spam contains advertisements for merchants with a U.S. connection, meaning that the merchant can be readily found and prosecuted. (Think about it - if they want to sell you something, they need to tell you how to pay them - while the spammers are often off-shore, the merchants almost always have *some* U.S. connection, making legal action much simpler.) Once you have the merchant, it's much easier to find the spammer. Also, merchants are going to think twice about utilizing a spammer's services once they themselves are on the hook, where before they were essentially immune. Anne Anne P. Mitchell, Esq. President/CEO Institute for Spam & Internet Public Policy Professor of Law, Lincoln Law School of SJ _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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