Tacoma internet provider David Ferguson is suing a long list of spammers that includes corporations like Kraft and Pfizer, saying junk email makes it hard for small businesses like his to serve his customers. Photo by Andrea Lee. Imagine threading a telephone wire through the eye of a needle.
Better yet, imagine threading a whale through the eye of a needle.
In the early years of the Internet -- before wireless, before DSL, in that long-forgotten age of 33K dialup -- for Tacoma's Mark Ferguson, checking email became like threading a whale through the eye of a needle.
"It took me hours just to open an email," he remembers. "My computer crashed every time."
That's because Ferguson's email, on which he relied for his Internet web-host and design company, had gotten so clogged with spam that it was rendered totally useless. What would amount to a nuisance for most people suddenly meant the end of his business.
So Ferguson did what so many of us would like to: he fought back against that most obnoxious of binary blights, spam. Nearly six years on, he's still fighting.
Ferguson and his counsel, Seattle-based i.Justice Law, are some of the few to fight back successfully, their trials reaching as far as federal courts and their settlements numbering in the tens of thousands of dollars. But it began with a phone call to a then-unknown spamster, Robert Alan Soloway. Soloway had been sending Ferguson (and a few million others) spam via a "hijacked" server in Japan.
Ferguson traced the emails by their domain name and found, to his surprise, that they originated from a residential address around 45 minutes away.
It was as simple as looking Soloway up in the phonebook. And after a brief and heated exchange, Soloway sneered, "There's nothing you can do about it."
But Soloway, whom the FBI would later dub America's "Spam King," was wrong; his business records and computers were soon confiscated by local police. In 2007, thanks in part to Ferguson's efforts, Soloway was found guilty on 35 counts, including fraud and aggravated identity theft.
But this case is, ultimately, one of a few silver linings on a very gray cloud of litigation.
"The statutes [against spamming] are extremely young," says Bob Siegel, co-founder of i.Justice Law, a Seattle-based firm specializing in suing spammers. "The question for [i.Justice Law] is always, 'Can we push courts to push the statutes?'"
Spam is estimated to have accounted for 75 to 90 percent of bandwidth usage last year. Small internet service providers, says Siegel, don't have money to buy the most up-to-date filtration software. A company like Microsoft can increase bandwidth, hire technicians, write software, and recruit an entire legal department to sue spammers. But the little outfits just can't afford to combat spam.
Contrary to common belief, though, most spam operators are not pimple-faced computer geeks operating from their parents' garage. Many are multi-million dollar corporations that devote tremendous resources to defending their legitimacy. Those small ISPs that decide to take on spammers find themselves in a uniquely vulnerable position, prone to counter-suits and legal fees.
And though Washington's anti-spam law provides monetary compensation for those who receive it, most judges have sided with spammers. In 2005, Siegel and the small, independent ISPs he represents suffered a huge setback in Seattle federal court.
"The judge made a fairly arbitrary interpretation," says Siegel. "He decided that the plaintiff hadn't incurred enough damages. By ruling that it was frivolous, he basically closed the door on the little guys."
The plaintiff, the owner of an ISP in eastern Washington, was eventually ordered to pay $100,000 in attorney's fees. The spammers he sued are now countersuing him and and four of his family members only obliquely involved with the case.
Most cases don't get this ugly. Legitimate advertisers who subcontract to spammers are eager to avoid implication and settle with plaintiffs out of court. The spammers themselves are another story. "We're basically attacking the [spam companies'] entire business model," said Siegel, "so they fight tooth and nail."
But Siegel and Ferguson aren't ready to throw in the towel. They are in the process of filing suit against more than 100 spammers and advertisers who have formed a loose spamming network. The list of defendants includes Kraft, Xerox, and Pfizer, not to mention a few $100 million a year "internet marketers." A tall order--but then again, all David had was a slingshot.