[Politech] Anne Mitchell's insider reply supporting Senate spam bill [sp]

From: Declan McCullagh (declan@private)
Date: Tue Oct 28 2003 - 12:47:01 PST

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    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
    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 P. Mitchell, Esq.
    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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