Facebook Just Downgraded 3 Types of Spammy Posts

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Facebook, in its constant News Feed vigilance, is now going after spam with its latest edict telling page administrators to end shady posting tactics just to expand their reach. This is yet another tweak in a series of changes to the system to purge low-quality content.

 

The organic reach question has been top of mind for advertisers, brands and businesses, which have found their posts sent to fewer and fewer fans. Facebook is pushing marketers to either share higher-quality posts or pay to promote poor ones. Facebook said today's changes could result in some brands seeing a "very small increase in News Feed distribution."

Facebook said it is going after three main areas to ensure only the most relevant content shows in the News Feed, as the social network likes to say.

1 Quit like-baiting or you will be penalized. These are posts that explicitly beg users to like, share and comment, but Facebook says the change won't affect pages "genuinely trying to encourage discussion."

2 Frequently circulated content—the same videos and photos—will be weeded out so users could stop seeing the same story over and over from different sources.

3 Spammy links are a target—ones that entice clicks but don't deliver as promised. Facebook says some posts encourage clicks by tricking people and sending them to a "website that contains only ads or a combination of frequently circulated content and ads." Facebook said it discovers these spammy links by measuring how often users click on them but don't wind up liking or sharing them.






April 11th 2014 Facebook, Mobile, spam, Technology

Yahoo! Scores Significant Win in Email-to-SMS Lawsuit

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We’ve blogged a bunch about text spam lawsuits in general, and about those against Yahoo! as well. Most recently, a judge denied Yahoo!’s request to dismiss a lawsuit relating to IM-to-SMS functionality. (See “TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment.”)

In contrast to the result in the California case, in federal court in Pennsylvania, Yahoo! prevailed in a putative class action alleging that its email-to-SMS functionality violated the TCPA.

Plaintiff alleged that he obtained a cell phone and number and that the previous owner of the number had enrolled in Yahoo!’s email-to-SMS functionality. That is, plaintiff alleged that he never signed up to receive any text messages from Yahoo! but nevertheless received them.

Plaintiff filed a lawsuit in April 2013. Yahoo! quickly moved for summary judgment on the basis that Yahoo! did not use an “autodialer” as required by the statute and case law.

The statute covers unsolicited texts sent using equipment which has the capacity to store or produce numbers “using a random or sequential number generator” and to dial such numbers. The Ninth Circuit in Satterfield v. Simon & Schuster articulated a watered down standard for this requirement: “a system need not only store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do so.” (See this post for a discussion of Satterfield.)

After limited discovery, the court grants Yahoo!’s motion and dismisses the lawsuit. The court relies on a declaration from a product manager from Yahoo! to the effect that the equipment used by Yahoo! “[does] not have the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to call those numbers.” Plaintiff tried to contest the product manager’s declaration and offer his own expert testimony, but the court is not persuaded. Although unclear, the court seems to say that the “system” can generate random numbers and then text those numbers, but can only perform both of those functions if it has some software installed. At any rate, the court does not say that it’s using a standard that’s different from the one in Satterfield, but seems to imply that the requirement to generate random numbers and then dial (or text) them is conjunctive, rather than disjunctive (i.e., the equipment has to have the ability to generate numbers and call those numbers that are generated). Interestingly, the court focuses on the fact that the equipment alone does not have that capacity, but with the installation of software it would easily obtain it.

This is a BIG win for Yahoo! Make no mistake about it. Since it’s a district court opinion, it will have limited effect, until affirmed, but how to explain this:

- Yahoo! engaged in procedural jockeying that turned out to be advantageous (filing an early summary judgment motion)

- the trial court parsed Satterfield and employed a slightly different definition

- Yahoo!’s engineer did a nice job articulating minor differences between the capacity of the equipment and what was required by the statute

- the trial court recognized this lawsuit for what it was – a bogus attempt to capitalize on an overly broad statute

Either way, the problem of recycled phone numbers is not a very easy one to solve, but perhaps Yahoo! or the phone companies will put some energy into trying to come up with some fixes. (Cf. Telephone Numbers as Identity Authenticators–Abrams v. Facebook.) In the meantime, this lawsuit will likely be consigned to the dustbin, where it belongs.

Case citation: Dominguez v. Yahoo!, Inc., 2014 WL 1096051 (E.D. Pa. Mar. 20, 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

March 28th 2014 spam

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

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Yahoo! offers instant message users the ability to receive a text message notification of an instant message. A customer received two messages, and sued for violations of the Telephone Consumer Protection Act. The court denies Yahoo!’s motion for summary judgment.

The first message stated:

A Yahoo! user has sent you a message. Reply to that SMS to respond. Reply INFO to this SMS for help or to go y.ahoo.it/imsms.

The second message stated:

Hey get online I have to talk to you.

As described the court, Yahoo!’s messenger service allows Yahoo! users to send instant messages to mobile devices from their computers. The tool ostensibly “allows people who do not own mobile phones to send and receive text messages from their computers.”

Yahoo! implemented a notification process for these types of messages. If the recipient has not previously been sent a computer to phone message, then the recipient is sent a single automatically generated notification message. Although the facts are not totally clear to me, the court says that the user can opt-out of receiving future text messages in one of several ways: by replying with a certain command, by going to the Yahoo! webpage and opting out, or by receiving four messages and not responding to any of them.

Coming back to Yahoo!’s summary judgment motion, it was based on three separate grounds: (1) the single confirmatory text message was not covered by the TCPA; (2) Yahoo! did not use an automatic telephone dialer system; and (3) the claims were barred by Section 230.

The confirming text message is subject to the TCPA: The court asks whether the initial message was consented to and finds the evidence inconclusive. Yahoo! relied among other cases on Ibey v. Taco Bell, but the court said that case was different because there Taco Bell sent a single text message confirming an opt-out in response to the plaintiff’s initial text, and the court concluded that the opt-out confirmation was not subject to the TCPA. Ultimately, the court distinguishes Ibey and appears to say that a single informational message is unlikely to fall outside the TCPA, unless it can satisfy the “prior express consent” exception.

Did Yahoo! use an automatic telephone dialing system: The prevailing cases construing the statute on this point (and perhaps the statute itself) have a ridiculously broad definition of what type of equipment must be used to make the call in question (the capacity to store or produce numbers to be called using a random generator or from a list—basically any computer will suffice). Defendants may have to make this argument as a matter of course, but as in other cases, it did not fare well here.

Yahoo! Section 230 defense: Yahoo! also argued that its informational text was subject to immunity under Section 230(c)(2)(B), where an interactive computer service “[takes] action to enable or make available . . . the technical means to restrict access to [objectionable material].” The court rejects this defense. According to the court, Yahoo! “does not block or filter the unidentified third party user’s message to Plaintiff.” The court says Holomaxx v. Microsoft is inapposite because in that case involved Microsoft’s filtering of third party messages (and the third party’s unsuccessful effort to reverse this decision). Finally, the court says that “neither Yahoo! nor the . . . user have the opportunity to determine whether the third party message is ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.’” Citing to a concurring opinion in Zango v. Kaspersky, the court cautions against a blank check to an interactive computer service’s ability to invoke the “otherwise objectionable” language from Section 230(c)(2)(B).

__

Ugh.

For starters, it’s surprising to see Yahoo! implement a feature in this manner, given the well-documented risks associated with unsolicited text liability and with cross-platform messaging. (See “Telephone Numbers as Identity Authenticators” (discussing Abrams v. Facebook), and the numerous other TCPA rulings we’ve discussed on the blog, such as Joffe, Satterfield, Voxernet. The list is endless.)  An ideal solution from a consumer perspective would be to allow end users to opt-in to particular numbers that they wish to receive texts from. Another less ideal, but probably legally safer, alternative would be to allow consumers to opt-in to the IM-to-SMS feature in the first place, rather than making it opt-out. Even an opt-in after an initial informational message would have been preferable to the mechanism Yahoo! seems to have used. At worst, a broad consent provision may have supported a “prior express consent” argument but the fact that Yahoo! didn’t raise it makes me think the consent was either clunky or not broad enough to address these types of texts.

Of course, that doesn’t make this lawsuit meritorious by any stretch. This is nothing more than another attempt by plaintiffs to exploit an incredibly broad statute that is turns the landscape into a minefield for companies such as Yahoo! Yahoo! was not advertising any third party products or for that matter its own products. This case can be contrasted with the Voxernet case where the initial message was at least ostensibly designed to encourage would-be users to sign on to the service. Here, the recipient is already a customer of Yahoo!. Sure it sucks to receive a text message from some Yahoo! IM-spammer, but as a consumer you can easily opt-out; and if your privacy settings are such that people you don’t know cannot send you messages, chances are the text is from someone you knew in the first place anyway. Tough to argue in this circumstance that the plaintiffs are suffering any type of harm that Congress intended to be remedied through the TCPA.

Yahoo!’s 230 argument seems credible, and the judge’s discussion about what type of content should be filtered and any dangers of a broad definition of “otherwise objectionable” content leading to blocking decisions for anti-competitive reasons seems totally inapplicable here. Yahoo! is providing information or technical measures to allow users to block unwanted content (the text messages), and this looks like what this provision was designed for. Perhaps Yahoo!’s phrasing in its confirmation message was not ideal (maybe it could have said “you have received an IM-to-SMS message … click here to report as spam and stop receiving further messages”). But this shouldn’t be determinative. An additional point: couldn’t Yahoo! have simply transmitted user messages and then claimed straightforward Section 230 immunity for re-transmitting user content? If that’s the case, it doesn’t seem like Yahoo! should get dinged for taking steps to make it easier for consumers to manage their preferences.

[For more on how courts can and should interpret Section 230(c)(2) more broadly than this court did, see Eric's article.]

Either way, bad implementation and a questionable ruling.

Case citation:  Sherman v. Yahoo! Inc., No. 13cv0041-GPC-WVG (S.D. Cal. Feb. 3, 2014). The complaint.

Related posts:

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

February 18th 2014 spam

Court Won’t Order Google To Lift Manual Block For ‘Thin Content’–ICF v. Google

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Photo credit: Thin Ice Sign // ShutterStock

Photo credit: Thin Ice Sign // ShutterStock

ICF provides web hosting services to hundreds of pornography websites. Google allegedly manually blocked these sites for spam, characterizing them as having “thin content,” which Google defines as “providing internet content that has little or no value to end-users.” The manual block effectively de-indexes the websites from Google’s search index and blocks Android and Chrome users from accessing the sites. Presumably, this dried up traffic to ICF’s hosting customers, who I imagine weren’t thrilled. ICF sought a temporary restraining order (TRO) to force Google to reverse its block.

On Friday, the court refused the TRO request, saying that for each of ICF’s claims, “there is at least one element for which, at this stage, success seems unlikely.” Some of the court’s concerns:

* ICF didn’t show that Google had an “improper purpose.” ICF said it would find this improper purpose in discovery, but that’s not enough to support a TRO. ICF speculated that Google’s “thin content” rationale must be pretextual because it doesn’t have “thin content,” but the court says ICF can’t prove it doesn’t have “thin content.” (Note: this implicit evidentiary burden-shift is especially appropriate when evaluating a TRO).

* it’s not clear Google communicated the “thin content” claim to anyone other than ICF and its customers.

* it’s not clear if there was the requisite “public interest impact” for ICF’s consumer law claim.

* Google may have viable First Amendment and 47 USC 230 defenses. To me, the Section 230 defenses are dispostive, but the court doesn’t go there yet. The court does raise a baffling scenario though:

It is possible that ICF could circumvent these defenses in whole or in part by arguing, as it does, that navigation through a browser’s address bar does not warrant protection under the First Amendment or the CDA

Huh? I’m not sure what this means, but I’m sure that 47 USC 230(c)(2) protects browser blocking decisions, and I think the First Amendment applies too.

This specific ruling isn’t a big deal, in the sense that denying the TRO preserves the status quo, i.e., Google’s block remains in place. On the other hand, a contrary ruling–that courts will second-guess Google’s manual spam actions–would have been a shot heard ’round the world. Every scrappy website unhappy with its search placement would be running to the courthouse, hoping to convince a judge to give them some goosing in the search engine rankings. Fortunately, that won’t happen. As we saw in the Ninth Circuit’s Zango v. Kaspersky ruling from 2009, courts will interpret Section 230(c)(2) to give wide berth to service providers’ “spam” classifications; and the First Amendment will back up that conclusion further (see, e.g., the 2003 Search King v. Google case). Given the potential stakes, this is a case worth watching closely, but I expect a quiet denouement when the court dismisses the suit for good.

Case citation: ICF Technology, Inc. v. Google, Inc., 2013 WL 6728826 (W.D. Wash. Dec. 20, 2013). The complaint.

December 23rd 2013 spam

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

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This is a lawsuit over spam emails. I know, it’s 2013, but bear with me.

Riley sent a demand letter alleging that numerous emails sent by or on behalf of plaintiff violated California’s spam statute. Plaintiff turned around and filed a declaratory judgment lawsuit, seeking a judgment that the 115 emails at issue did not violate California’s spam statute. Riley counterclaimed for violations of the California spam statute.

In a brief order, the court dismisses the counterclaims based on CAN-SPAM preemption. In a later ruling addressing plaintiff’s request for summary judgment, the court backtracks slightly and says that seven of the emails in question may be materially misleading and also fall under the “tort sounding in fraud” exception to CAN-SPAM preemption:

certain emails sent by plaintiffs contain more than the type of technical, non-tortious falsities that are preempted by federal law .. seven of the spam emails at issue actually contain Riley’s name in the “from” line, which is a material falsity that could possibly give rise to a claim of fraud.

The court denies plaintiff’s request for summary judgment but grants leave to file another motion.

Later, ruling on plaintiff’s motion for a protective order, the court declines to exercise declaratory judgment jurisdiction over the claims that were preempted by CAN-SPAM (those claims based on 108 of the emails). This leaves claims based on seven of the emails. These seven emails are the subject of the court’s later summary judgment ruling.

In this ruling, the court says that in order to escape preemption, a spam plaintiff need not show classic fraud – “reliance and damages need not be demonstrated to save a lawsuit from preemption” (citing a pair of Asis Internet Servs cases, see here and here). Rather, the court says that if a plaintiff can show that a sender was responsible for “knowing and material misrepresentations,” this is sufficient to escape preemption. [The court does not mention US v. Alvarez, which held that falsehoods cannot be banned consistent with the First Amendment absent proof of harm or consequences, but one wonders how a spam claim that alleged mere falsity without any reliance or materiality will fare against a First Amendment argument.]

Turning to the emails in question, the specific allegations of falsity that (counterclaim) plaintiff relied on were that the emails appeared to be sent from Riley herself … to herself. The court says that there’s no way this could make the emails deceptive:

[t]he court finds that while the use of Riley’s name in the ‘from’ line was indeed false, the fact that Riley would have immediately recognized the use of her own name puts her counter-claims in the same category as the ‘non-deceptive statements’ that were rejected by the Gordon court. Upon receiving the emails, Riley would have instantly known that she did not send those emails to herself, and thus the emails could not have been deceptive in any meaningful way.

Thus, there’s no material deception, and the claims under California’s anti-spam statute are preempted. The court grants summary judgment on the preemption issue and as with the prior claims declines to exercise declaratory relief jurisdiction over these seven emails also.

__

Oy.

A lawsuit that stretches over two years, and in the end the court is left to resolve the question of whether including the recipient’s name in the “from” line renders the email deceptive. This is on par with an allegation that the use of “fanciful” from lines are misleading, and the Ninth Circuit squarely rejected this argument in Virtumundo. If anything, emails with from lines that look that they are from the recipient are much less deceptive than a from line that looks like it’s from a generic person at a company (e.g., “Customer Service Manager at Acme Corp”). You should know that you did not send yourself an email, right? Of course, the key question is whether the domain in question is used with permission and is fairly traceable to the sender. The from line argument has always been a red herring, although it never seems to go away. It’s nice to see the court dismiss it here.

Spam litigation is dying a slow death. Litigation over the past several years has created a few narrow openings that (as this case demonstrates) plaintiffs continue to try to exploit. Courts should close the door on these attempts. Interestingly, both sides appealed the court’s rulings, so perhaps the Ninth Circuit will take up this opportunity to pick up where it left off in Gordon v. Virtumundo?

Case citation: Davison Design & Dev. v. Riley, No. C 11-2970 PJH (N.D. Cal. Nov. 8, 2013)

Related posts:

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

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

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

Plaintiff Wins $7,000 Following Bench Trial on Claims Under California Anti-Spam Statute — Balsam v. Trancos

Use of Multiple (Even Random or Garbled) Domain Names to Bypass Spam Filter Does not Violate Cal. Spam Statute — Kleffman v. Vonage

An End to Spam Litigation Factories?–Gordon v. Virtumundo

Fourth Circuit Rejects Anti-Spam Lawsuit–Omega World Travel v. Mummagraphics

Domain Name Privacy Protection Services Not Liable for Failure to Disclose Identity of Alleged Spammer — Balsam v. Tucows

Just who is an Internet access service provider under CAN-SPAM?

Advertiser Not Liable for Spam–Hypertouch v. Kennedy-Western University

CA Appeals Court: Claims Under State Spam Statute Not Preempted by CAN-SPAM

December 22nd 2013 spam

It’s Illegal For Offline Retailers To Collect Email Addresses–Capp v. Nordstrom

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The California Supreme Court issued a decision a couple of years ago holding that a zip code is “personal identification information” under the Song-Beverly Credit Card Act of 1974, making it illegal for retailers to ask consumers to provide zip codes in connection with credit card transactions. (See “California Supreme Court Rules That a ZIP Code is Personal Identification Information — Pineda v. Williams-Sonoma.”) Extending that precedent, this case holds that retailers can’t ask for email addresses during credit card transactions. (Note: the statute does not apply to online or other “card-not-present” transactions, so online retailers are off the hook.)

Plaintiff alleged that Nordstrom requested his email address as a condition of completing the sale. Nordstrom allegedly asked plaintiff his email address so it could email him the receipt. According to plaintiff, this resulted in promotional emails from Nordstrom “on a nearly daily basis” as well as a general increase in email traffic.

An Email Address is Personal Identification Information: The statute prohibits retailers from “request[ing] or requir[ing] as a condition to accepting the credit card as payment . . . the cardholder to provide personal identification information.” Personal identification information is defined as information concerning the cardholder, “including but not limited to, the cardholder’s address and telephone number.”

In Pineda, the California Supreme Court held that this statute should be construed broadly, given the statute’s protective purpose. Nordstrom argued that Pineda is distinguishable because an email address is something arbitrarily chosen by the holder of the email address and can frequently changed. The court disagrees, noting that someone’s email address “permits direct contact and implicates the privacy interests of a cardholder.”

Nordstrom also argued, citing to Apple v. Superior Court, that as a new technology that was unlikely to be anticipated by the legislature at the time of enactment, the definition of personal identification information should not cover email addresses. The court says that although the California Supreme Court in Apple concluded that the same statute did not apply to internet transactions, the court’s holding was not premised on the legislature’s inability to anticipate these transactions but rather on the fact that zip codes could be collected for fraud-prevention purposes.

Nordstrom also raised the argument that defining the statute to encompass email addresses worked an undue surprise on retailers and was unfair, but this argument gets no traction with the court.

Plaintiff’s allegations were sufficient: Nordstrom argued that the plaintiff’s allegations were not sufficient to show that the plaintiff was required to cough up the email address, but the court says that at the pleadings stage, the allegations suffice. Moreover, while there is an “incidental purpose” exception to the statute, this exception does not envision collection of an email address in order to email a receipt to a purchaser.

Nordstrom also raised a First Amendment argument, but predictably this fails. The court says that collection of an email address is conduct and not speech.

Preemption: Nordstrom also argued that the plaintiff’s claim was preempted by CAN-SPAM. CAN-SPAM preempts state law that “expressly regulates the use of [email] to send commercial messages.” The court says that this means that the only state laws that are preempted are those that expressly regulate the use of email addresses. This statute does not expressly speak to email and concerns the collection of an email address rather than the transmission of email. Additionally, the court says that it’s possible to comply with both statutes. Complying with one statute does not generate the risk of not complying with the other. Finally, the court says that preemption would also be contrary to the purposes of CAN-SPAM, which is concerned with curbing the transmission of unwanted email.

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Yikes. Something tells me that an enterprising class action lawyer will use this decision to target something we all see as a convenience and innovation of the retail experience: the Apple store. Please don’t. It’s so great to have the option of getting receipts emailed to you. I never understood why paper receipts were mandated by law, but I love electronic receipts. For what it’s worth I use a throwaway email address for this purpose but don’t seem to notice any uptick in email, at least not from Apple. Admittedly, a retailer can exploit this information in a variety of ways, including to bridge the on and off-line gap when building a consumer’s profile. Nevertheless, to me, the use of an email address to avoid a paper receipt is a great convenience.  [I haven't thought through what this decision means for retailers who use Square, but in my experience they also typically ask if you would like your receipt emailed to you; I think Square stores an email address once it has been associated with a credit card, so retailers technically do not have to request it.]

Unlike junk mail, which is what something like your zip code ostensibly generates and that is not addressed by another statute, in this case, we have statutes expressly dealing with the ills that are caused by the collection of email addresses: California’s anti-spam statute and CAN-SPAM. This shouldn’t necessarily be the court’s primary consideration in construing the credit card statute or answering the preemption question, but it’s worth noting.

This is one of many decisions answering the question of whether a bit of data is personal identification information. We’ve had rulings addressing zip-codes, IP addresses, and now email addresses. The decision demonstrates courts’ willingness to construe personal information broadly, and the lack of a binary “personal” versus “non-personal” distinction when it comes to data. (See generally Prof. Paul Ohm’s work: “Data Anonymization and Re-identification Lecture Featuring Paul Ohm, SCU, April 7“.)
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Eric’s Comments:

(1) Is it clear yet to you that the Song-Beverly Act isn’t aging well? It was written for a different era, and its application to the modern retailing environment is nonsensical. It seems quaint, but not in a good way, to be “protecting” email addresses only offline given how much commerce has moved offline. The offline exceptionalism is indefensible, and its application to a shopping feature (the emailed receipt) not contemplatable in the 1980s shows how the language creates unexpected barriers to new technological developments that consumers like and value. Who would like to work with me in an-almost-certain-to-fail effort to repeal the Song-Beverly law?

(2) What drives me absolutely batty is that the California legislature KEEPS MAKING THE SAME DRAFTING MISTAKES!!! Their tsunami of new privacy laws show the legislature hase learned absolutely nothing from the mistakes they made a couple decades ago–including, most damningly, still making technologically rooted laws that won’t age well. See, e.g., the huge number of drafting ambiguities in the online eraser bill.

(3) Decisions like this typically act as green lights for massive numbers of new lawyer-driven lawsuits that do nothing to help consumers. Yay.

Case citation: Capp v. Nordstrom, Inc., No. 2:13-cv-00660 (E.D. Cal. Oct. 21, 2013)

Related posts:

* California Supreme Court Rules That a ZIP Code is Personal Identification Information — Pineda v. Williams-Sonoma

* California Supreme Court: Retail Privacy Statute Doesn’t Apply to Download Transactions – Apple v Superior Court (Krescent)

* Ninth Circuit: FACTA Does not Cover Emailed Receipts — Simonoff v. Expedia

* Men’s Journal Beats Lawsuit Alleging Violation of California’s “Shine the Light” Privacy Statute — Boorstein v. Men’s Journal

* “Electronically Printed” Does not Include Automated Merchant Email — Shlahtichman v. 1-800 Contacts

November 30th 2013 spam

YouTube Comments Vandalized by Troll Art

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YouTube comments have devolved into a forum for phallic art. Google has admitted its new commenting system has led to some unintended consequences, like pornographic pixel portraits.

In September, Google forced all YouTube users to link to Google+ profiles in order to continue commenting on videos. Putting an end to anonymous commenting was meant to clean up filthy YouTube comments by discouraging bad behavior.

But Google also opened the comments section to links, which has opened the door to spam. And YouTube comments, now linked with Google+, now have no maximum on the number of words or characters—which has led to commenters unleashing their creative sides, making pictures with their keyboards within comment streams.

The computer drawing technique is known in graphic design circles as ASCII, which Google has acknowledged is getting out of hand on YouTube.

Here’s what the company had to say about all of it in a blog post this week.

We’ve worked hard to combat the increase in spammy comments and have made a number of updates, including:

• Better recognition of bad links and impersonation attempts
• Improved ASCII art detection
• Changing how long comments are displayed

In the past, brands have run into trouble when advertising on YouTube, only to run into comment trolls. The new policies gave users more ability to moderate comments.

Social media experts say that the platform is better for brands when they feel safe about enabling and engaging in commenting.


    



November 28th 2013 Google, Search, spam, Technology, video, YouTube

Google May Have Penalized Another Major Link Network: Ghost Rank 2.0

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Google has significantly penalized another underground link network over the weekend and we believe that one of the link networks targeted by Google is named Ghost Rank 2.0. A few weeks ago, Matt Cutts, Google’s head of search spam, tweeted “Thinking of ghost-related puns for a spam…



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September 24th 2013 Google, spam

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

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By Eric Goldman

Spam Arrest LLC v Replacements Ltd., 2013 WL 4675919 (W.D. Wash. Aug. 29, 2013)

shutterstock_109793972.jpgPeople hate receiving spam, but most people stopped obsessing about spam a decade ago or more. In the interim, anti-spam filters have improved dramatically. Still, some anti-spammers hate spam so passionately–or, perhaps, hope to put a little coin in their pockets–that we still see a steady stream of lawsuits against email marketers. For the most part, those lawsuits don’t win; in the past half-decade, repeat anti-spam plaintiffs have rarely won in court. A recent ruling in a case brought by Spam Arrest demonstrates just how hard it’s gotten to win anti-spam lawsuits–and why we’re not likely to see many successful anti-spam lawsuits in the future.

The Ruling

Spam Arrest offers a subscription anti-spam service that blocks emails from senders until they verify themselves. To verify senders, Spam Arrest emails them a link to a verification page, where the sender can click on a “verify” button.

The verification page contained a two-paragraph “Sender Agreement” below the verify button. The Sender Agreement said that clicking the verify button indicated assent to the Sender Agreement, but before 2011, the rest of Spam Arrest’s verification process didn’t highlight the Sender Agreement. After 2011, Spam Arrest made it clearer that verification also meant assent to the Sender Agreement. Spam Arrest showed that the email marketing defendant, Sentient Jet, completed the verification process about 600 times, causing email to reach over 500 Spam Arrest customers.

The Sender Agreement made senders promise that they were not sending “unsolicited commercial e-mail” and specified that senders had to pay $2,000 for each violation of the agreement (a “liquidated damages” clause). Imposing liquidated damages for spam has become fairly common in online contracts, and it’s succeeded in at least one case.

Unfortunately for Spam Arrest, its breach of contract claim against Sentient Jet fell apart on multiple grounds:

* Spam Arrest didn’t convince the court that it properly formed the Sender Agreement during the verification process (the court said the jury would have to decide). Its failure to make the contract formation unambiguous, at least prior to 2011, didn’t comply with best practices for online contract formation. Compare the legal treatment of the Zappos and JDate contracts.

* Even if the contract was properly formed, Spam Arrest couldn’t show that Sentient Jet employees who verified the email had legal authority to enter into the Sender Agreement. The court points to Spam Arrest’s expensive liquidated damages as the reason why: “Employees who have authority to use corporate email addresses probably have authority to undertake certain acts incidental to sending email. Without additional evidence, however, no jury could conclude that this generic authority includes authority to enter a contract that imposes $2,000 in liquidated damages for every email sent in violation of the contract.”

* Spam Arrest couldn’t show that Sentient Jet sent “unsolicited commercial e-mail.” The court said Spam Arrest had the burden to show that Sentient Jet lacked consent of the email recipients to send them email, even those Sentient Jet admitted that it bought the email addresses for some recipients. If Sentient Jet had to prove recipients consented to its email, it almost certainly couldn’t. Nevertheless, the court wouldn’t infer that buying email addresses meant those recipients hadn’t consented to Sentient Jet’s email: “To rule otherwise would be to create a presumption that no one consents to receive commercial email, and the court declines to do so.” Without that inference, Spam Arrest couldn’t “prove the negative,” i.e., prove that its subscribers didn’t consent to Sentient Jet’s emails.

* Spam Arrest didn’t show meaningful damages from Sentient Jet’s email. The court says Spam Arrest’s direct operational costs from an unwanted email are less than $0.02. Spam Arrest argued that it lost subscription revenues from disgruntled subscribers who canceled their accounts, but the court notes that “Spam Arrest admits that it has no evidence that any customer has left because of spam from Sentient Jet.”

Because the damages were so minimal and attenuated, the court rejected Spam Arrest’s liquidated damages clause as an unenforceable penalty. (Contracts law prohibits financial penalties in contracts). To prop up its liquidated damages calculations, Spam Arrest retained Dr. Steven Shavell, a Harvard Law professor and a major figure in the field of Law and Economics, but this didn’t go well. The court discredited Dr. Shavell’s testimony as “wholly divorced from the analysis of liquidated damages clauses that Washington law requires,” and Spam Arrest apparently conceded that Dr. Shavell’s testimony was “irrelevant” to the applicable legal standard. Worse, the court says that Dr. Shavell’s testimony helped Sentient Jet’s case by confirming “that the $2,000 is justifiable only as a deterrent, not as a reasonable forecast of damages.” (Dr. Shavell declined comment on this ruling).

If Spam Arrest couldn’t show any damages from the lawsuit, why did it sue? I got the following statement from Derek Newman, one of Spam Arrest’s lawyers:

I’ve been a Spam Arrest customer since 2001. Spam Arrest is the only spam-elimination technology that works. It’s successful at least 99% of the time and would always work if not for companies like Sentient Jet. Sentient’s director of marketing entered into an agreement with Spam Arrest promising not to send spam to Spam Arrest’s customers. But to promote its $120,000 private-jet cards, Sentient’s employees ignored the agreement and sent thousands of emails to Spam Arrest’s customers whose names Sentient purchased from a third-party email-list broker. We believe the court erred in finding that Sentient Jet should not be responsible for its employees’ conduct. Spam Arrest is evaluating an appeal to protect its customers from unwanted spam in light of the court’s decision.

I’ll note another plausible hypothesis for the lawsuit: it was just a pure cash play, i.e., 600 allegedly bogus verifications x $2,000 liquidated damages = $1.2 million of potential damages.

Implications

* Anti-spammers don’t win in court just by showing up. In this case, the judge repeatedly dinged Spam Arrest for its lack of proof. Indeed, I often see anti-spam plaintiffs do an incomplete job preparing their cases. Sometimes I feel like anti-spam plaintiffs view their case as trivially easy: they got email they didn’t want, so the sender should pay. As this case illustrates, that’s not the way it works.

* Anti-spam plaintiffs lose in court. More generally, the tide has really turned against anti-spam plaintiffs. After a professional spam plaintiff, Gordon, lost a big ruling in 2009, judges are frequently suspect of the anti-spam plaintiff’s motives (especially when the plaintiff is a repeat litigant). I rarely see anti-spam plaintiff wins in reported cases any more.

* Text messaging spam is the emerging battleground. While the legal battles over email spam are winding down (except for diehard serial plaintiffs trying to scratch a living out of litigation-in-bulk), the litigation battles are migrating to other forms of unconsented electronic marketing. The biggest hot-spot today is text message marketing litigation, where even a single unconsented SMS can support a Telephone Consumer Privacy Act (TCPA) claim.

* The ruling on contract authority highlights a serious hole in online contracts. Typically, websites can form enforceable agreements with their users by requiring them to click through online terms, even if the website doesn’t know the identity of the people who clicked through the agreement. We’ve rarely seen attacks on online contract formation by arguing that the people clicking on the agreement lacked legal authority to do so, but that issue arises with every online contract where employees of a company putatively bind their employer to the online terms. If defendants can avoid online contract terms by arguing they lacked authority to agree to those terms, lots of online contracts will fail unexpectedly.

Fortunately, most courts who have addressed this issue have found the clicking person had the requisite authority (see, e.g., Crawford v. Consumer Depot, Abramson v. America Online and Motise v. America Online). Further, this ruling didn’t hold that employees categorically lacked authority to bind their employers to the Sender Agreement; the key was Spam Arrest’s $2,000 liquidated damages clause, which was such a large dollar amount that the court paused to ask if rank-and-file employees had the requisite authority. The ruling leaves open the possibility that a different approach to liquidated damages might have been more successful.

[Photo credit: Computer Network Spam Concept // ShutterStock]

September 19th 2013 spam

Caught Redd-Handed: How Trying To Game Reddit Can Backfire For Brands

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If there is one thing as popular as narwhals or bacon on Reddit, it is the community rallying around those trying to infiltrate their system. As we’ve previously reported, Reddit does not like people who spam or who try to synthetically inflate their own articles. People haven’t learned…



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August 30th 2013 Social Media, spam