Privacy and Security Law Blog : Privacy & Security Law Blog : Davis Wright Tremaine LLP : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai, Portland and Anchorage Law Firm

Posted by Ronald G. London

The Federal Trade Commission recently announced that as a result of a new crackdown by the agency on violations of the National Do-Not-Call Registry (“NDNCR”) and related provisions of the FTC’s Telemarketing Sales Rule (“TSR”), it entered several consent decrees with multiple companies totaling $7.7 million in civil penalties, with one complaint still outstanding. The FTC brought the enforcement actions against Craftmatic (purveyor of adjustable beds and mobility assistance scooters) and affiliated entities through which it conducts telemarketing, ADT for TSR-violative actions by authorized third-party dealers of its security systems, Ameriquest Mortgage Company, Guardian Communications and its prerecorded call vendor U.S. Voice Broadcasting, and Global Mortgage Funding. Each of the first four companies and their affiliated entities entered consent decrees with the government and agreed to pay substantial civil penalties (amounts provided below) and to injunctive relief prohibiting them from engaging in similar violations in the future, while the FTC’s complaint for civil penalties and injunctive relief against Global was to be filed.

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Posted by Charlene Brownlee

Congress approved S. 1608, the “Undertaking Spam, Spyware, And Fraud Enforcement with Enforcers beyond Borders Act of 2006,” (the US SAFE WEB Act of 2006) on December 9, 2006. The US Safe Web Act amends the Federal Trade Commission Act (FTCA) and improves the Federal Trade Commission (FTC)’s ability to protect consumers from international fraud by: (1) improving the FTC’s ability to gather information and coordinate investigation efforts with foreign counterparts; and (2) enhance the FTC’s ability to obtain monetary consumer redress in cases involving spam, spyware, and Internet fraud and deception.

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Posted by Ronald London

The U.S. Court of Appeals for the Fourth Circuit (i.e., for North and South Carolina, Virginia and West Virginia) has affirmed a Virginia federal court’s dismissal of an anti-spam advocate’s complaint that hypertechnical “violations” of the Controlling the Assault of Non?Solicited Pornography and Marketing, or “CAN-SPAM,” Act entitled him to damages. The ruling is a potential blow to “professional plaintiffs” and other advocates who use the CAN-SPAM Act and/or state laws to sue for damages and/or broker settlements with senders of commercial emails. The decision also may have application to similar tactics by telemarketing foes who use the Telephone Consumer Protection Act and related laws in a like fashion.

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Posted by Ronald London

The intermediate-level appellate court in Virginia’s state system this week rejected constitutional and other challenges to what was the first U.S. felony conviction for spam violations, leaving defendant Jeremy Jaynes facing up to nine years in prison for sending what some estimate may have been as many as 10 million unsolicited emails a day at the height of his activities. Jaynes was convicted of violating a Crimes Against Property provision in Virginia’s Criminal Code prohibiting falsified or forged transmissions in connection with sending unsolicited bulk emails, or “UBEs.” According to prosecutors, at the time of his arrest Jaynes’ transmission of emails touting pornography and “sham” products and services, to the tune of up to $750,000 per month, made him one of the top 10 spammers worldwide.

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Posted by Ronald London

After watching the Federal Trade Commission in America tout the success of the National Do-Not-Call Registry over the past several years, with most recent FTC estimates indicating that over 120 million phone numbers appear on the U.S. list, Australia has joined Canada among countries seeking to emulate the United States' approach to staunching unwanted phone calls. Presently, the webpage of the Canadian Radio-television and Telecommunications Commission ("CRTC") shows the agency to be at the tail end of a public comment period on a proposed national do-not-call list. According to one source, the Canadian list is expected to be operational approximately a year from now. Among other provisions, the proposed rules would impose fines of up to $1,500 for individuals and $15,000 for companies that fail to honor a do-not-call registration. As with the U.S. registry, Canadian law allows exemptions for charities, surveys, and political calls, as well as calls made to a recipient with which the caller has an "established business relationship."

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Posted by Ronald G. London

The Federal Communications Commission has completed its rulemaking to adopt regulations codifying the "established business relationship" or "EBR" exemption to the federal prohibition on unsolicited facsimile advertisements in the Telephone Consumer Protection Act (TCPA). The codification was necessary under the Junk Fax Prevention Act, which mandated that the FCC re❽instate the "EBR exemption" the agency announced it would eliminate in 2003 (after it had been in effect since 1992) in favor of requiring prior written consent for unsoli❽cited fax ads. The new rules create a new "do-not-fax" regime for unsolicited advertisements whereby those who send such faxes must maintain an internal list of recipients who "opt out" of further faxes from the sender.

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Posted by Ronald London

The Federal Trade Commission announced that it has entered a consent decree with Jumpstart Technologies requiring it to pay a $900,000 civil penalty for violating the CAN-SPAM Act by sending "disguised" and misleading commercial emails, or "spam." The payment is the largest penalty ever for illegal spam, according the FTC. The consent decree also permanently prohibits Jumpstart from engaging in future practices prohibited by the CAN-SPAM and FTC Acts.

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Posted by Ronald London

At year's end, the Federal Trade Commission issued a report to Congress required by the Controlling the Assault of Non-Solicited Pornography and Marketing Act (i.e., the "CAN-SPAM Act") to provide a detailed analysis of the Act's effectiveness and enforcement and the need, if any, for Congress to modify the Act. The report was based on a variety of FTC fact-gathering mechanisms. In addition to its own direct enforcement experience under the CAN-SPAM Act and that of other entities empowered to enforce it, FTC staff interviewed consumer groups, email marketers, Internet service providers ("ISPs"), and others, and used compulsory process powers to obtain data from 9 ISPs that collectively control over 60% of the market for consumer email accounts. In addition, the FTC stated that it considered "the views of the general public about the effectiveness of the Act" as voiced during CAN-SPAM rulemakings held by the agency, as well as a "broad review" conducted by agency staff of "articles published about CAN-SPAM since its passage." The FTC also consulted with "two preeminent computer scientists for their independent evaluations of the Act's effectiveness."

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Posted by Thomas R. Burke

Email addresses that are available on website pages remain the richest target for SPAMMers who "harvest" addresses using automated systems that easily search for the "@" symbol. In a study released this month by the FTC's Division of Marketing Practices, the government also found that email addresses posted in chat rooms, message boards, and blogs were "far less likely to be harvested." This may be because operators in some chat rooms automatically remove postings that contain email addresses -- in contrast, website pages typically remain static. Best news: free anti-SPAM filters were highly effective in catching SPAM, although SPAM caught by ISPs remains a burden on the ISPs doing the filtering.

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What can a wireless provider do to stop telemarketers from illegally soliciting their customers? By bringing suit against the telemarking firms for an injunction and monetary damages in the Superior Court in Sacramento, CA and the Superior Court in Somerville, NJ, Verizon Wireless claims that it is "standing up once again for customer privacy rights".

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Recently the blog world has been debating a subject near and dear to our hearts here at the Privacy and Security Blog - splogs and blog spam. The nominal flash point for the recent debate was a blog by Dallas Maverick's owner and blogger Mark Cuban, who railed against the proliferation of blogs that contain no substantive commentary, but exist merely to deliver spam-like advertising messages and drive search engine traffic.

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Yesterday, August 2nd, the U.S. Court of Appeals for the Fifth Circuit issued a decision in the case of White Buffalo Ventures, Inc. v. University of Texas at Austin, holding that the University of Texas didn't violate the constitutional rights of an online dating service when it applied UT's general anti-solicitation policy and blocked thousands of unsolicited emails.

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