Sprint May Beat Spam Rap

Class-action suit under new Utah law may falter because of third-party marketer's role.

Daniel Tynan, special to PCWorld.com

In a test case for a new Utah antispam statute, a Murray, Utah, man is suing Sprint Communications for sending him unsolicited e-mail. His case is one of dozens filed by a group of Utah attorneys hoping to hit spammers where it hurts--in the wallet.

Terry Gillman, a 25-year-old collections agent, claims he received a message from the telecommunications giant promoting Sprint Nickel Nights Online, a discount long distance service, along with an offer for a free Webcam. Gillman's attorney, Denver Snuffer, claims the message violates the new antispam measure and has filed a class action suit on behalf of all Utah citizens who received a copy of the message. He seeks damages of $10 per day per message, or the statutory maximum of $25,000 per day.

Spokesperson Travis Sowders says Sprint does not comment on pending litigation; however, legal documents filed by the company deny all charges.

An examination of the message indicates it came not from Sprint, but a third-party marketer--which could ultimately let the long distance vendor off the hook. Still, Sprint appears to have a link to the marketer.

Tracking the E-Mail

The Utah statute says any unsolicited commercial e-mail must contain the sender's legal name, street address, and domain name, and have "ADV:" in the subject line. None of these items appear on a printout of the message obtained by PC World.

However, the fine print on the e-mailed ad reveals it was sent by GroupLotto, a Web site that offers a chance to win cash prizes for users willing to accept e-mail solicitations. GroupLotto is owned by Traffix, an electronic marketing company in Pearl River, New York, that has a long history of complaints on antispam newsgroups.

New York's Better Business Bureau gives Traffix an unsatisfactory rating, noting "recent complaints to the Bureau have alleged that the company is promising free airline tickets and cell phones to consumers who agree to switch their long distance carriers. Some consumers have reported difficulty in obtaining these premiums."

Sprint spokesperson Angie Makkyla acknowledges that Sprint hired Traffix "to send out e-mails on our behalf to acquire long distance customers." But she adds, "they acquire opt-in permission to send e-mail to anyone they communicate with."

E-mail that a user has agreed to receive is not considered spam under the Utah statute. Gillman's attorney Snuffer says his client did not join GroupLotto or agree to any mailings.

Officials at Traffix did not return requests for comment.

Seeking Culprits

The use of a third party to send the e-mail makes Sprint's legal liability a bit fuzzy, says one legal expert.

"I'd assume that whomever controlled the distribution of that e-mail would have responsibility for making sure it followed the law," says Christopher Wolf, who chairs the privacy law practice for Proskauer Rose in Washington, DC. "That sounds like the e-mail marketing firm."

Sprint "may have used an agent to send the e-mail...[but] the fact that an agent sent it is of no moment, nor does it change the liability under the Utah statute," counters Snuffer. "In our view, GroupLotto may be added as an additional party, depending on Sprint's use of them in a defense."

The suit against Sprint is just one of 58 filed by Snuffer's firm based on the new antispam law. Nelson, Snuffer, Dahle, & Poulson has also filed class action suits against Chase Manhattan Bank, Eddie Bauer, Procter and Gamble, and Cingular Wireless for sending e-mail that allegedly fails to comply with the statute.

"We are pursuing this to make a difference on the prevalence of spam and hopefully deter some of it," Snuffer says. "The hope is that bringing the litigation will result in enough attention that people will begin to comply...[and] we would have a more honest environment in which to conduct business over the Net."