AOL says lawsuit closes a spammer's loophole

The settlement that America Online extracted from a pair of Florida men last week may have closed a loophole used by spammers to flood e-mail in-boxes with junk mail.

On Wednesday, Dulles, Va.-based AOL announced the details of a settlement against John J. Bennett Jr., Joseph B. Elkind and their company, Netvision Audiotext Inc. in Fort Lauderdale, Fla. In the settlement, AOL dictated a list of conditions to the men, including requiring them to tell AOL of any other businesses that they might start in the future. The lawsuit, filed in January 2001, arose after AOL customers received pornographic e-mail messages from people using Bennett and Elkind's service.

"This is a tremendous victory and a landmark settlement," said AOL spokesman Nicholas Graham. "We went after a particularly egregious business model and broke it apart. This is a model that can be used by other companies as well."

Elkind and Bennett's attorney, John C. Pasierb of Arlington, Va., said his clients had no comment on the settlement.

While Green Brook, N.J.-based Junkbusters Corp. President Jason Catlett and Ari Schwartz of the Washington-based Center for Democracy and Technology both agreed that the AOL victory was interesting, they hedged on saying it was as groundbreaking as Graham said.

"This case shows that [AOL] can really take it quite far and push spammers further than they have in the past, and in that way it is a precedent," Schwartz said.

Catlett said AOL created a blueprint for how to go after a particular ruse that many spammers use. It holds companies that recruit others to do their spamming for them responsible for the havoc those spammers wreak on users' e-mail in-boxes.

According to the AOL suit, Elkind and Bennett paid a group of "webmasters" a commission for every AOL customer they attracted back to the adult Web sites the pair ran, Graham said. Each webmaster then sent out thousands of messages. Some of the webmasters set up multiple sites to launch their mass e-mail campaigns.

Technically, Elkind and Bennett didn't send the spam themselves. But the settlement holds Elkind and Bennett responsible for the spam and sets conditions the pair must abide by. Those conditions include whom Elkind and Bennett can hire, what criteria their employees must meet and the right of AOL to audit the company's records.

In addition, Graham said AOL extracted a cash settlement, but he wouldn't reveal the amount. However, in the lawsuit, which was filed in U.S. District Court in Eastern Virginia, AOL had demanded $10 per spam message. Of the 50 webmasters AOL named in its suit, most sent tens of thousands to hundreds of thousands of messages. One webmaster is alleged to have sent 37.5 million messages, and another 5.3 million.

Catlett found the settlement interesting because it "attacks a nasty little tactic for promoting spam." He called it "an instructive example with some very detailed rules and the court's seal on it."

Catlett said he isn't sure if the case will provide as much firepower as AOL hopes, however, because most spammers are "fly-by-night organizations" that are hard to catch. Most of the big spammers have already been sued out of existence.

The only thing that worried Schwartz about the settlement is that other companies could use the settlement to launch an attack on the First Amendment rights of others.

"We need cases like this so that those who are abusing the public trust [are stopped]," Schwartz said. "At the same time, we have to be careful that we don't make it too difficult for legitimate people."

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