Your On-Page SEO is Missing a Few Factors

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250-scamsOh boy, here’s another example of Internet marketing spam / scam that I received as a blog comment…

Hello Web Admin, I noticed that your On-Page SEO is is missing a few factors, for one you do not use all three H tags in your post, also I notice that you are not using bold or italics properly in your SEO optimization. On-Page SEO means more now than ever since the new Google update: Panda. No longer are backlinks and simply pinging or sending out a RSS feed the key to getting Google PageRank or Alexa Rankings, You now NEED On-Page SEO. So what is good On-Page SEO?First your keyword must appear in the title.Then it must appear in the URL.You have to optimize your keyword and make sure that it has a nice keyword density of 3-5% in your article with relevant LSI (Latent Semantic Indexing). Then you should spread all H1,H2,H3 tags in your article.Your Keyword should appear in your first paragraph and in the last sentence of the page. You should have relevant usage of Bold and italics of your keyword.There should be one internal link to a page on your blog and you should have one image with an alt tag that has your keyword….wait there’s even more Now what if i told you there was a simple WordPress plugin that does all the On-Page SEO, and automatically for you? That’s right AUTOMATICALLY, just watch this 4minute video for more information at. Seo Plugin

Let’s dissect this…

  1. Here’s the author info:
    • seo plugin
    • 0 approved
    • SeoOptimizationxxx.com/x
    • nhsfkpqf@gmail.com
    • 23.231.7.41

    GREAT name and email address for a ‘professional’ SEO service, eh?

    Those are the easiest first clues to to spam blog comments.

  2. Then, this scammer doesn’t know how to use a blog comment form to save his (or her) life, or the English language for that matter.Yes, you can read through the text and make sense of what he is saying, but that doesn’t negate the fact that the scammer isn’t actually an SEO professional… or a professional who is competent in the English language.

  3. The advice is completely bogus, i.e. ‘nice keyword density of 3-5%’. Duh. As always, my advice is to write for humans, not search engines. The search engines ‘get it’ when you blog regularly about a consistent theme. They also ‘get it’ when you try to write to an algorithm… to the point that you will be penalized for trying to manipulate your rankings.

  4. There is no such thing as a ‘simple WordPress plugin that does all the On-Page SEO, and automatically for you? That’s right AUTOMATICALLY’.

Nope, sorry, I hate to burst your bubble, but there is not such thing as a plugin that does ‘all the on-page SEO.

REAL bloggers do their own on-page SEO by crafting titles, tags, heading tags, image alts, slugs and everything else manually to stay in Google’s good graces.

Comments, questions or suggestions? Please leave a comment below!

Cheers,

sig-ros

July 30th 2014 affiliate marketing, SEO, spam

The ‘Noticed something about your WordPress Site’ Scam

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250-scamsThat’s a catchy subject line for an email, isn’t it?

Can’t blame you if you opened it like I did.

I’ve recently received a number of emails coming through contact forms on my various sites, each with a subject along the lines of… “Noticed something about your WordPress Site”.

Here is the full text of one those emails…

Subject: Noticed something about your WordPress Site

Message Body:
I realized while I was on your website that you have a WordPress website. At first it seemed a bit sluggish and was a little slow to load. I also had this problem a while ago with one of my WordPress sites. Webhosts like Godaddy, Host Gator, Blue Host, etc often overcrowd their shared hosting plans which can be bad for your website, have you ever looked into this?

There’s a guide right on wordpress maintained by a member that shows you how to check for this in two easy steps. The guide is at:

*********.wordpress.com

If you have a moment, it’s always a good idea to follow the two steps in that guide to test your current host. Your hosting is one of the most important factors for a WordPress based website. Good luck with your website!

The site that is linked to in each case looks much like this:

fake-affiliate

The copy makes valid points about overcrowding, site speed and WordPress Administration panel loading speed.

So, I checked my http://windingway.com site which is hosted on Bluehost and this is what I found regarding the number of sites hosted at the same IP address…

winding-way-you-get-signal

Oh MY!!!

They found over 1000 domains hosted on the same web server / IP address as windingway.com.

BUT, when I did the site load test, this was the result…

winding-way-pingdom

So, what was the ‘something’ problem that they noticed about my WordPress site(s)?

The REAL problem is that the people sending those emails are affiliate scammers and spammers…

They didn’t notice anything about my websites other than they are WordPress sites.

Although I received similar emails pertaining to each of my domains, only ONE domain is hosted on BlueHost – the others are on my own dedicated server. It’s easy enough to find out where a site is hosted by going to Whois.net.

Not that they would bother… they just look for contact forms and paste in their spam messages with the hope that someone will buy the hosting they recommend through their affiliate link.

If you DO get an email like that, just mark it as ‘spam’.

We do NOT want to reward affiliates with commissions that they achieve through scamming and spamming.

Comments, questions or suggestions? Please leave a comment below!

Cheers,

sig-ros

July 26th 2014 affiliate marketing, spam

TCPA Claim Against Taco Bell Fails For Lack of Agency

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I mentioned before that a court said Taco Bell wasn’t liable for texts sent on its behalf because the plaintiff didn’t adequately allege the sender was Taco Bell’s agent (See “Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell“). shutterstock_148273682-That ruling was appealed to the Ninth Circuit, and the Ninth Circuit similarly rejected plaintiff’s claims that the main Taco Bell entity (the franchisor) should be held liable for a message sent out on behalf of one of its franchisee-associations:

Ms. Thomas did not present any evidence to the Court that Taco Bell directed or supervised the manner and means of the text message campaign conducted by the Association and its two agents, ESW and Ipsh. She presented no evidence to the Court that Taco Bell created or developed the text message. Nor did she present any evidence to the Court that Taco Bell played any role in the decision to distribute the message by way of a blast text. All of this control over the manner and means of the text message campaign was exercised by the Association, ESW, and Ipsh, and Ms. Thomas has not presented any evidence to the Court demonstrating that Taco Bell controlled the actions of these entities with respect to the campaign. Taco Bell, simply put, had nothing to do with it.

However, although the court affirmed the trial court’s rejection of the claims against the main Taco Bell entity, the Ninth Circuit held that the basis for holding Taco Bell should not be limited to traditional agency principles–it should also include apparent authority and ratification. On this issue, the court agreed with the FCC, which had earlier ruled that traditional agency is not the only route to holding a third party (non-sender) liable for text messages. A few observations about the case:

  • it’s a bummer the court chose to issue an unpublished opinion–the case involved consequential issues, and the court was covering new ground
  • it’s possible the factual scenario presented by a franchisee advertisement is unique–how will this track to traditional advertiser/sender relationships (will the typical advertiser agreement provide the requisite degree of control (over the “manner and means” of advertising) to satisfy agency principles)?
  • it’s worth contrasting this case with Satterfield, the original 9th Circuit case that started it all–that case did not delve into agency issues, although it involved an attempt to hold a third party (Simon & Schuster) liable
  • the apparent authority and ratification prongs that the court says can be additional routes to third party liability are murky and the court does not specify what exactly they mean in this context

On the one hand, this is a defense-favorable ruling in its result. On the other hand, future plaintiffs will welcome this ruling in its expansion of avenues to liability (the effect of the ruling will perhaps be tempered by its unpublished status).

Case citationThomas v. Taco Bell Corp., No. 12-56458, 2014 WL 2959160 (9th Cir. Jul. 2, 2014)

Related posts:

* TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

* Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

* Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

* Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

* Group Text Services Grapple with TCPA Class Actions

* Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

* Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

* Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

* Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

* Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

July 22nd 2014 spam

Lawyer’s Suit Over “Professional Recognition” Spam Flops

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shutterstock_148273682-Say you’re a lawyer and you receive a promotional email intimating that you’re one of the “Top Lawyers in California.” You probably just delete it and move on, right? That would be too easy. Nicholas Bontrager sued Showmark alleging that he believed he received an accolade from a “respected legal association or organization.” The email purported to charge a $159 fee for a plaque memorializing the award. Bontrager never paid the fee because, upon inquiring, he did not receive a response from Showmark, but he did end up wasting his time, bandwidth, and email storage space. He did the logical thing that lawyers do when email wastes their time: he sued Showmark for violating California’s spam statute.

Bontrager alleged that Showmark’s email contained a misleading subject line. Ordinarily, the court says this presents a question of fact, but the court says that the subject line in this case is not misleading. The court contrasts this email with other emails where courts have found subject lines potentially misleading because they insinuated a personal relationship (Tagged; Reunion) or where the subject line leads the recipient to believe that she will get something for free (Member Source; ValueClick).  This is not the case here:

The phrase “Lawyer Media, Top Lawyers in California” indicates that the body of the email will concern top lawyers in California. This is in fact the subject addressed in the body of the email. Although the information contained in the body of the email may have been misleading because it suggested that Bontrager had received a fictitious award, the fictitious award was an award for top lawyers in California. This is exactly the topic identified the subject line. For that reason, no reasonable trial [sic] of fact could conclude that the subject line of the email was misleading.

….

Nothing in the subject line of the email Showmark sent indicated that Bontrager would receive a “Top Lawyer” plaque if he took certain action (e.g., opening the email), while the body of the email required him to take different action to receive it (e.g., paying a fee). Nor did the subject line indicate that the email was from a personal acquaintance, or even from the organization making the fictitious award, rather than a company that manufactures plaques. For these reasons, no reasonable trier of fact could find that the subject line of the email was likely to deceive a reasonable consumer. Bontrager’s § 17529.5(a)(3) claim must therefore be dismissed.

Bontrager’s claims under the false advertising statute and unfair competition laws also fail. He did not pay any money to Showmark, or for that matter to any third party, as a result of the emails. He now knows the true nature of the email, so he’s not entitled to injunctive relief against future misleading emails of this nature. He also fails to allege damages sufficient to confer standing. He failed to allege how his loss of time, bandwidth, and email storage translated into economic losses (e.g., he did not plead that he paid for email storage at work).

Finally, Bontrager alleged negligent misrepresentation, but his allegations on damages fall short on this claim as well. He has to allege that he suffered damages as a result of the misrepresentations. He did not purchase the plaque—in fact, he investigated the award and “determined not only that he had not [won an award], but also that there was no organization that made such awards.” Thus, even if he had purchased a plaque, the purchase would not have been caused by Showmark’s misrepresentations.

Bontrager gets a chance to amend some of the claims, but he’s unlikely to do so for obvious reasons.

__

Ouch. Lawyer-plaintiffs and their often poorly-faring lawsuits are a perennial favorite on the blog. To his credit, Bontrager did not represent himself. [Eric's comment: Bontrager's thrashing in court does suggest that “Lawyer Media, Top Lawyers in California” was, in fact, a dubious claim based on this lawsuit's result. Even if another lawyer represents him/her, a lawyer-in-the-role-of-plaintiff should have known better. I think Venkat and I should send a "Thank You For Demonstrating Your Legal Acumen To Prospective Clients" plaque to future lawyers who get drubbed in court when they become plaintiffs.]

CAN-SPAM litigation has diminished significantly, but as this lawsuit shows, plaintiffs still sue under California’s spam statute. Courts grappled with preemption, but unfortunately they have drawn a murky line at best. When coupled with decisions under California’s spam statute that give an expansive reading of that law, plaintiffs have wiggle room to sue under California’s spam statute.

That said, this is a nice data point for litigation over email subject lines. There’s nothing materially misleading about the subject line in this case, and the court nicely groups the cases where courts have found for the plaintiffs. I suppose the court could have said that, because there’s no award and the recognition is fake, this causes the subject line to be misleading, but the court takes an approach that looks for material accuracy. (It’s similar in this vein to cases such as Mummagraphics that decline to find causes of action based on technical inaccuracies with other aspects of a commercial email.) The court says that the subject line says nothing about the legitimacy of the award. It merely says that the email is about the topic of lawyer recognition…which it, in fact, is. Perhaps the court wasn’t touched by the usual sympathy for a plaintiff because this case involved a lawyer?

Bontrager also argued that the subject line was misleading because it failed to indicate the email was a solicitation, but the court said there’s no such requirement in the statute.

Case citation: Bontrager v. Showmark Media LLC, No. 14-01144 MMM (Ex) (C.D. Cal. June 20, 2014) (h/t Kronenberger Rosenfeld)

Related posts:

Advertiser May Have Claims Against SEO Firm Using Undisclosed Spammy Practices

Court Accepts Narrow View of CAN-SPAM Preemption but Ultimately Dismisses Claims – Davison Design v. Riley

Spam Arrest’s Sender Agreement Fails Because Email Marketer’s Employees Lacked Authority–Spam Arrest v. Replacements (Forbes Cross-Post)

Another Spam Litigation Factory Unravels –- Beyond Systems v. Kraft

Independent Contractor Relationship Between Sender and Advertiser Dooms Spam Claims – Kramer v. NCS

CAN-SPAM Violations For Private WHOIS Information and Putting Disclosures in Remotely Served Images – ZooBuh v. Better Broadcasting

Crazy SOPA-Like Attempt to Hold International Banks Liable for Pharmacy Spam Fails on Jurisdiction Grounds–Unspam v. Chernuk

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Court Refuses to Dismiss Claims Against Alleged Twitter-Bot Spammer–Twitter v. Skootle

Is SOPA’s “Follow the Money” Meme Infecting Anti-Spam Litigation? – Project Honey Pot v. Does

Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation

California Appeals Court Says Emails That Don’t Identify Sender Violate State Spam Statute – Balsam v. Trancos

Old School Spam Plaintiff Rebuffed in the Ninth Circuit

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

Court Dismisses Lawsuit Under Michigan Spam Statute Based on Preemption and Lack of Standing — Hafke v. Rossdale Group, LLC

Spam Claims Covered by Contract’s Indemnity Clause–Commonwealth Marketing Group v. IMG Assocs.

In Facebook’s Lawsuit Against Alleged Spammer, Court Denies MaxBounty’s Motion to Dismiss

Seventh Circuit Awards e360 a Whopping $3 in Damages Against Spamhaus — e360 v. Spamhaus

Court Rejects First Amendment Challenge to CAN-SPAM Indictment — US v. Smallwood

Jury Rejects Lawyer’s Claims Under DC’s Anti-Spam Law — CyberLaw v. Thelaw.net

July 13th 2014 Marketing, spam

Email Harvesting: Repeated Emails From LinkedIn May Violate Publicity Rights

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This is a lawsuit alleging that LinkedIn improperly mined users’ contact lists and sent them repeated invitation emails. While Judge Koh eliminated the Stored Communications Act and California anti-hacking statute claims, a chunk of the lawsuit remains. Harvesting contact lists remains a risky business. (See also Path.)

The court describes the sign-up process for LinkedIn in some detail. Screen Shot 2014-06-17 at 2.36.21 AMUsers who create profiles are offered a chance to “grow [their] network[s] on LinkedIn.” As part of this process, LinkedIn collects a user’s email address, which is pre-populated – a user can skip this step or continue. Users who continue are taken to a page of their email service provider. (The court uses the example of Google, noting that the complaint focused on individuals who used Gmail accounts to sign up for LinkedIn.) Then the user is asked somewhat obliquely if LinkedIn can access the user’s Google contacts. A user who says “allow” then proceeds to the “connect with people you know on LinkedIn screen.” Screen Shot 2014-06-18 at 7.25.03 AMThis page allows a user to connect with people who have LinkedIn accounts, by checking or unchecking boxes next to their accounts. Then comes the next page, which asks innocuously: “why not invite more people”. This page allows a recently signed-up user to invite their friends who don’t have LinkedIn accounts. While the user is given the choice of “adding” users to the network or skipping the step, plaintiffs complained that LinkedIn sent repeated email invites (3 to be exact). Each email contains the name of the user and says the now-familiar “I’d like to add you to my professional network.”

According to plaintiffs, it wasn’t entirely easy to stop this process:

there is no mechanism by which users can withdraw all endorsement emails at once . . . Plaintiffs allege that it would take hours to prevent LinkedIn from sending the repeated endorsement emails to the hundreds or thousands of contacts a user may have.

Plaintiffs alleged claims under the Stored Communications Act, California’s publicity rights statute, Section 502 of the California Criminal Code, and the Unfair Competition Statute.

Standing: The court says that plaintiffs have standing as to the federal statutory claims. As to the remaining claims, the court says that Fraley v. Facebook and Cohen v. Facebook are possibly analogous (one, Fraley, allowed the claims based on Sponsored Stories to move forward, while the court in Cohen rejected the claims as to promotion of the FriendFinder service). The court says this case is “no different from Fraley”:

The Court’s decision in Fraley was premised on the fact that endorsements or invitations from friends or acquaintances are more valuable than generic advertisements that do not contain the recommendation of a familiar or trusted sources. It is this measure or personalization of an endorsement that routinely has a concrete and provable value, as this Court recognized in Fraley and as Judge Seeborg concluded in C.M.D. … In sum, the Court finds that individuals’ names have economic value where those names are used to endorse a product to the individuals’ friends and contacts.

SCA/Wiretap Act: The court addresses LinkedIn’s consent argument and says the key question is whether a reasonable user who viewed LinkedIn’s disclosures would have understood LinkedIn was collecting email addresses. The court says yes, noting that the words “allow” and “no thanks” are presented to the user before the point of collection. Significantly, consent is not buried in a terms of service as it was in the Gmail scanning/advertising case.

Plaintiffs tried to argue that the precise scope of LinkedIn’s collection of emails was unclear, but the court rejects this. It would be clear, the court says, that LinkedIn wants to access a user’s Google contacts . . . i.e., all of them. Plaintiffs also argue that LinkedIn was not clear about its storage practices, but the court says this is irrelevant to consent. The court also rejects plaintiffs’ argument that LinkedIn’s collection of email addresses is contrary to LinkedIn’s own stated policies.

Right of Publicity: As to this claim, the court also agrees that LinkedIn’s disclosures were sufficient to alert users that their names would be attached to emails sent to contacts who were not on LinkedIn. However, the court says that this contsent does not necessarily extend to the second and third emails. Among other reasons, because LinkedIn says “we will not . . . email anyone without your permission,” the court says LinkedIn users may have been led astray.

LinkedIn argued that the alleged harm from the second and third emails would be no different from the first, but the court understandably credits the users’ allegations the repeated emails have more of a deleterious effect on a user’s reputation:

Specifically, the second and third endorsement emails could injure users’ reputations by allowing contacts to think that the users are the types of people who spam their contacts or are unable to take the hint that their contacts do not want to join their LinkedIn network. The reputational harm is magnified by the fact that the only people who receive the second endorsement email are the user’s contacts who chose not to register for LinkedIn upon receipt of the first email. . . . Therefore, individuals who receive second and third email invitations to join LinkedIn after declining one or two previous email invitations to join LinkedIn from the same sender may become annoyed at the sender, which could be professionally or personally harmful. [emphasis added]

Section 502 of California Penal Code: This section has been interpreted to require circumvention of a technical or code-based barrier. Plaintiffs argued that LinkedIn “tunnels through any open email program on a user’s desktop” (i.e., where a LinkedIn user has a Gmail account open on a separate tab, or accesses LinkedIn without having logged out of Gmail, LinkedIn improperly prepopulates the Google account screen where a user is asked whether LinkedIn may access her contact). The court says this does not sufficiently allege circumvention of a code or technical barrier. More importantly, the court says that any alleged harm is undermined by the users’ consent. In practical terms, even if LinkedIn improperly prepopulated the Gmail/LinkedIn page, because the user affirmatively must agree and take an affirmative step before proceeding, a user cannot assert harm.

UCL Claims: Plaintiffs alleged two types of claims under California’s unfair competition statute, those based on misrepresentation and under the unlawful prong. The court dismisses the misrepresentation based claims because plaintiffs failed to allege they actually read and relied on any misrepresentations. As to the UCL claims under the unlawful prong, the court says denial of the motion to dismiss the right of publicity claims necessitates denial of the motion to dismiss these claims as well.

___

Why must social networks abuse our trust so? In a better world, where networks were less careless about respecting user preferences, I could see giving networks access to my contact lists. But the opportunity to demonstrate user trust in that regard has come and gone (and been squandered). (I’m can’t even get comfortable with the idea of using my primary email address when signing up for accounts.)

While we may not necessarily agree with the legal conclusion that the second and third emails should be treated different from the first, it’s tough to deny that these emails are designed solely to benefit LinkedIn. Any reasonable user would send one email at best, encouraging their friends to join a network. On a related note, perhaps the case offers lessons to those looking to implement a refer-a-friend program, and shows the drawbacks of being aggressive with repeated emails, even if you have properly procured consent.

Consent under the Stored Communications Act has not been tested very often. The ruling alludes to the Gmail scanning case where Google unsuccessfully attempted to rely on consent in its terms of service. Judge Koh makes a point of contrasting that, by noting that consent here is obtained much more explicitly. I think there’s still some room to argue that LinkedIn could have made it clearer, but the ruling nevertheless provides some guidance for those who wish to rely on consent in this setting.

Publicity rights have been the sleeper hit for plaintiffs in litigation against social networks.

Another interesting case and a split-the-baby ruling from Judge Koh. Although we may not always agree with her rulings, she’s thorough and her opinions make for interesting reading.

[Disclosure: I own a small number of shares in LinkedIn. Also, Eric is an Influencer on that platform.]

Case citation: Perkins v. LinkedIn, 2014 WL 2751053 (N.D. Cal. June 10, 2014)

Related posts:

Path May Be Liable for Text-Spamming Users’ Contact Lists

Facebook’s “Browsewrap” Enforced Against Kids–EKD v. Facebook

Wiretap Claims Against Gmail Scanning Survive Motion to Dismiss — In re: Google Inc. Gmail Litigation

Court Rules That Kids Can Be Bound By Facebook’s Member Agreement

Facebook Sponsored Stories Settlement Approved – Fraley v. Facebook

Judge Seeborg Rejects Sponsored Stories Settlement For Now — Fraley v. Facebook

Facebook “Sponsored Stories” Publicity Rights Lawsuit Survives Motion to Dismiss–Fraley v. Facebook

Court Blesses Instagram’s Right to Unilaterally Amend Its User Agreement–Rodriguez v. Instagram

Privacy Plaintiffs Lose Because They Didn’t Rely on Apple’s Privacy Representations — In re iPhone App Litigation

June 19th 2014 Marketing, spam

Study Shows How Socialbots Can Infiltrate Twitter, Gain Followers & Influence

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More and more, we are counting on social media to be a reflection of reality. In many ways it has become the world’s focus group, a massive crowd-sourced data mine. News organizations use it to take the pulse of public opinion; Nielsen sells a social TV ratings report; Major League Baseball…



Please visit Marketing Land for the full article.

June 7th 2014 Social Media, spam, Twitter

Path May Be Liable for Text-Spamming Users’ Contact Lists

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Sterk, of Sterk v. Redbox fame, sued Path, alleging that he received unsolicited marketing texts from Path. The court declined Path’s request to stay the case in favor of FCC proceedings, and the parties filed summary judgment motions on the narrow issue of whether the text was sent using an automatic telephone dialing system (ATDS).

shutterstock_148273682-The statute defines an ATDS as equipment which has the capacity to store or produce numbers using a random or sequential number generator and to dial such numbers. The widely cited case for the statutory definition of ATDS is Satterfield v. Simon & Shuster.

Path argued Sterk admitted that Path did not have equipment to generate random or sequential numbers. On this basis, it sought summary judgment. The court says this does not end the inquiry. The FCC has issued guidance saying that an ATDS may also include equipment that automatically dials numbers from a stored list (i.e., in this case, the list of contacts that are uploaded to Path servers). The court says that there’s a wealth of case law endorsing the FCC’s interpretation that so-called predictive dialers fall within the definition of ATDS, and the facts show that the equipment used by Path is “comparable to predictive dialers”.

Path argued that the users’ act of clicking to approve the upload of contacts is an act of human intervention that precludes treatment of the equipment as an automated dialer, but the court says the act of human intervention relates to the collection of information and not to the dialing. Path also argued that the FCC rulings dealing with predictive dialers did not remove the prior requirement of being able to generate random or sequential numbers, but the court says the FCC merely cited to the previous ATDS requirements in support of its rationale that predictive dialers are covered.

Path finally argues that the FCC’s rulings are vague and overbroad, but the court rejects these arguments.

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Path can’t seem to catch a break. Between its privacy and security snafus and claims based on text messaging, it’s had more than its fair share of legal wrangling. On the other hand, it’s tough to have a ton of sympathy for Path, given that it’s an app that is designed to facilitate “private sharing” and allow users to control their privacy preferences.

This lawsuit is reminiscent of those against Voxer and also the group text apps (e.g., Slide). The FCC granted a bit of a reprieve to group texting apps, saying that consent to receive a text can be procured via a third party, such as the organizer of a group texting session. But the reprieve was fairly limited, and under that ruling did not extend outside of the particular session or group in question:

we further clarify that where the consumer has agreed to participate in a GroupMe group, agreed to receive associated calls and texts, and provided his or her wireless telephone number to the group organizer for that purpose, the TCPA’s prior express consent requirement is satisfied with respect to both GroupMe and the group members regarding that particular group, but only regarding that particular group.

Arguably, a Path user taking affirmative action to send out texts to her contact list exhorting them to join Path can be analogized to a GroupMe organizer obtaining consent for a group text session, but the narrow nature of the FCC GroupMe ruling makes me think this argument would not fly.

At the end of the day, Path should have probably known better. Absent a big change in the TCPA, sending unsolicited marketing texts continues to be a sketchy endeavor at best.

Added: it’s worth contrasting this case with the Dominguez case where Yahoo! prevailed against a plaintiff asserting TCPA claims. In Dominguez, the court parsed Satterfield and the declaration of a Yahoo! engineer in concluding that Yahoo! did not use an ATDS. While the court there took a narrow view of what constitutes an ATDS, the court in the Path case seemed to take an opposite approach.

Case citationSterk v. Path, 13 C 2330 (N.D. Ill. May 30, 2014)

Related posts:

TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Court Affirms Robust ISP Protection For Blocking Bulk Emails — Holomaxx v. Microsoft/Yahoo

Telephone Numbers as Identity Authenticators–Abrams v. Facebook

Group Text Services Grapple with TCPA Class Actions

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

Cellphone Spam Violates TCPA–Joffe v. Acacia Mortgage

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

June 6th 2014 Marketing, spam

CAN-SPAM Preemption Doesn’t Apply To Fraud…And More

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This a spam case. Plaintiff sued, alleging violations of California’s spam statute with respect to 49 emails. Plaintiff alleged that defendants:

register[ed] its domain names used to send spams to unregistered fictitious business names claiming their addresses to be boxes at commercial mail receiving agencies so as to be untraceable back to the actual SPIRE VISION companies. Other senders register[ed] the domain names to false companies and/or proxy-register their domain names so that a spam recipient cannot readily trace the information provided by a Whois query to the actual sender. The unlawful elements of these spams represent[ed] willful acts of falsity and deception, rather than clerical errors.

CAN-SPAM preempts state laws regulating email, except those that prohibit falsity or deception. The key question is whether in order to escape the scope of CAN-SPAM preemption, a plaintiff must satisfy all elements of a common law fraud claim, or whether something less suffices.

The court says that the appeals court decisions to date do not answer this precise question. Both cases (Mummagraphics and Virtumundo) held that only material inaccuracies are covered by CAN-SPAM, while claims based on minor inaccuracies are preempted. However, the majority of district court cases (Reunion; Consumerbargaingiveaways) permit plaintiffs to escape preemption without pleading a traditional fraud claim.

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A somewhat recent California case (Trancos) said that use of tools that make the identity of a sender hard to find could be actionable under California’s anti-spam statute. The allegations here track that case.

While Virtumundo and Mummagraphics did not directly speak to this issue (the court in Mummagraphics noted that the recipient could have taken the simple step of using WHOIS to find out the identity of the company behind the domain name), they nevertheless said that only material representations can be actionable. Using a mail-forwarding service or proxy registration shouldn’t be considered a misrepresentation at all, and it certainly shouldn’t be a material misrepresentation. Federal courts in California don’t seem particularly interested in wading into the dispute of whether these types of allegations are preempted.

The ruling was issued in early March, and nothing of real significance has happened in the case. (Wagner filed another similar looking lawsuit that was remanded to state court by Judge Gonzalez Rogers. A request was made to relate this case with that one and that request was denied.) Hopefully we don’t see a settlement in this case. Judge Alsup is well known as a no-nonsense judge, and defendants have a good forum to test plaintiff’s factual allegations, as well as the core issue of whether things like use of proxy registration or PO boxes are considered misrepresentations at all, much less materially misleading ones that should be actionable.

Case citation: Wagner v. Spire Vision, C13-04952 WHA (N.D. Cal. Mar. 3, 2014)

Related posts:

Advertiser May Have Claims Against SEO Firm Using Undisclosed Spammy Practices

Court Accepts Narrow View of CAN-SPAM Preemption but Ultimately Dismisses Claims – Davison Design v. Riley

Spam Arrest’s Sender Agreement Fails Because Email Marketer’s Employees Lacked Authority–Spam Arrest v. Replacements (Forbes Cross-Post)

Another Spam Litigation Factory Unravels –- Beyond Systems v. Kraft

Independent Contractor Relationship Between Sender and Advertiser Dooms Spam Claims – Kramer v. NCS

CAN-SPAM Violations For Private WHOIS Information and Putting Disclosures in Remotely Served Images – ZooBuh v. Better Broadcasting

Crazy SOPA-Like Attempt to Hold International Banks Liable for Pharmacy Spam Fails on Jurisdiction Grounds–Unspam v. Chernuk

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Court Refuses to Dismiss Claims Against Alleged Twitter-Bot Spammer–Twitter v. Skootle

Is SOPA’s “Follow the Money” Meme Infecting Anti-Spam Litigation? – Project Honey Pot v. Does

Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation

California Appeals Court Says Emails That Don’t Identify Sender Violate State Spam Statute – Balsam v. Trancos

Old School Spam Plaintiff Rebuffed in the Ninth Circuit

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

Court Dismisses Lawsuit Under Michigan Spam Statute Based on Preemption and Lack of Standing — Hafke v. Rossdale Group, LLC

Spam Claims Covered by Contract’s Indemnity Clause–Commonwealth Marketing Group v. IMG Assocs.

In Facebook’s Lawsuit Against Alleged Spammer, Court Denies MaxBounty’s Motion to Dismiss

Seventh Circuit Awards e360 a Whopping $3 in Damages Against Spamhaus — e360 v. Spamhaus

Court Rejects First Amendment Challenge to CAN-SPAM Indictment — US v. Smallwood

Jury Rejects Lawyer’s Claims Under DC’s Anti-Spam Law — CyberLaw v. Thelaw.net

June 3rd 2014 Marketing, spam

Anti-Spam Legislation for those with Clients in Canada

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Canadian-FlagYou don’t have to be IN Canada to be subject to Canada’s new anti-spam legislation (Bill C28), which is going into effect one month from now, on July 1, 2014.

The bill includes a “private right of action that will allow Canadian consumers and businesses to take civil action against those who violate the legislation”.[12] The CRTC may levy fines of up to $1 million for an individual or $10 million for a business that contravenes the Act. Each violation will result in a fine.

Here is a FAQ on the Canadian government website that will answer any questions you have regarding how to deal with Canadian clients in the future.

  1. What is spam?
  2. What is the intent of the new law?
  3. What do you mean by “related online threats”?
  4. How big a problem is spam in Canada?
  5. What can individuals and businesses do to protect themselves against spam and related online threats?
  6. How long will it take before Canadians can expect to see a real difference in the amount of spam received?
  7. Will the new law eliminate spam in Canada? If not, by how much will it be reduced?
  8. Has anti-spam law been effective in other countries?
  9. I’m a legitimate business owner who uses bulk email to reach my customers. How will I be affected by these new anti-spam measures?
  10. What about text messages or “cellphone spam”? Is it covered?
  11. What if I buy email lists? How will I be affected by these measures?
  12. Are there exceptions, such as the Do Not Call list for political parties and charities?

Get all answers to those questions here.

Basically, the message is simple – do NOT spam if you care about your online business.

Use a reputable company such as Aweber and have visitors to your website sign-up to an email list with options to opt-out whenever they want.

Remember, anyone who doesn’t want to be on your list is not someone you WANT on your list.

June 2nd 2014 News, spam

All Those Kik Pics From Strangers Will Now Be Blurred

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Mobile messaging app Kik is giving users new controls to protect against unwanted anonymous advances, the company said today. The app will censor images from strangers to limit lewd content being shared by surprise, explained Heather Galt, Kik’s head of marketing and safety. 

“If you haven’t talked to someone before, we’re treating new conversations differently,” Galt said. “It felt like the logical next step.”

The app will blur all photos in messages when users who never interacted before contact each other for the first time. Users can only share unblurred images after they have both approved each other.

Kik, based in Ontario, Canada, is approaching 150 million registered users, many of them teenagers, Galt said. Young people—sometimes those too young for their own phones—use Kik mobile devices like iPods, because it doesn’t require a number to join.

Smartphone users like the app because it gives them a way to connect without handing over their numbers. Galt said that many users post their Kik contact info elsewhere online from Tumblr to Instagram so people they meet can message them.

“One of the biggest drivers for the app is that you should feel comfortable sharing your Kik username wherever you want,” Galt said. “That’s one of the benefits.”

However, revealing your Kik contact online means that strangers could send unsafe and explicit messages. Harassment and security concerns, always a part of the online community, have become heightened in the messaging space with the rise of apps like Snapchat, Line, Tango, WeChat and others.

Galt did not reveal how many daily users Kik has, but she said 50 percent of Kik’s daily users share photos. Kik also is combating spam on the platform, Galt said. 

Brands have been waking up to mobile apps that introduce them to users. Today, Tango announced it would support brand channels for users to follow. Kik has opened its platform for brands and publishers to create mobile websites within the platform.






May 21st 2014 Mobile, spam, Technology