A Case of the Lesser of Two Evils?

In a somewhat peculiar case, e360Insight LLC – the one-man mass mailing company which sued Spamhaus for besmirching its *cough* good name with accusations of spamming and which is now itself being sued for spamming – is suing data aggregation company ChoicePoint for CAN SPAM violations and breach of contract.

BackGround: e360Insight bought millions of email addresses from ChoicePoint. Some of the addresses were marked with an “O” to indicate that they could not be used for email marketing, while others were marked with an “I” to indicate that they could be used for email marketing. e360 proceeded to send emails to all addresses, regardless of whether they were marked with an “O” or an “I” – and that resulted in them being sued by some peeved recipients. Now here’s where it gets interesting: CAN SPAM prohibits the selling of email addresses belonging to people who have opted out of mailings. Consequently, e360 are claiming that ChoicePoint breached both contract and CAN SPAM provisions by selling opt-out addresses, even though those addresses were clearly marked as such:

If Ms. Sidewater’s assertion is true, this assertion constitutes an admission of violation of the CAN-SPAM Act of 2003, which provides that if a recipient requests not to receive commercial email, then it is unlawful for the sender to release, sell, or transfer such person’s email address to a third party. Thus, ChoicePoint admits that it breached 12(a)(ii) of the Agreement. But for this breach, e360 would not have sent any emails to the complainants and would not have been sued.

Hmmm. Gotta say, I don’t have much sympathy – in fact, make that I have no sympathy at all – for either side in this dispute. Who’d you prefer to see win? A(n) spammer alleged spammer? Or a company which sells your email address to a(n) spammer alleged spammer?

Tough choice!

Should you be interested in reading more, the documents are available over at SpamSuite.

Written by Jesmond Darmanin

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