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You’re starting your day at work, sipping your cup of coffee and scrolling through your unopened e-mails. You come upon an e-mail titled “Did you hear the news?” and click to open the e-mail. Before you know it, you are subjected to sexually explicit solicitations to visit adult-oriented Web sites, perhaps while your supervisor is walking by your desk. Has this happened to you? Well, if you’re lucky enough to answer that question in the negative, others have not been so lucky. As a consequence, the Federal Trade Commission (FTC) has filed suit seeking to block an allegedly illegal spam operation that, according to the FTC, uses fairly vanilla subject lines, false return e-mail addresses and empty “reply-to” links to expose unsuspecting consumers, including children, to sexually explicit material. THE LAWSUIT The case, filed on April 15, is titled Federal Trade Commission v. Brian Westby, and is pending in federal district court in St. Louis. The FTC grounds its case on the FTC Act, which prohibits unfair and deceptive acts or practices in or affecting commerce. The FTC accuses Brian Westby of formulating, controlling and directing a spam operation in violation of the act. THE CHARGING ALLEGATIONS Specifically, the FTC alleges that the spam operation has used subject lines to disguise the content of e-mails. Such subject lines purportedly have included: “Fwd: You may want to reboot your computer,” “Re: Please resend the email,” “Re: your email address,” “I found your adress,” “Fwd: Your software,” “Did you hear the news?” “What is wrong?” and “New movie info.” Furthermore, spam e-mails with such innocuous subject lines are alleged to contain sexually explicit solicitations to visit adult-oriented Web sites. Indeed, the FTC asserts that the sexually explicit images are viewable immediately upon opening the e-mails. The FTC points out that because of the deceptive subject lines, consumers have no reason to expect the sexually explicit material contained in the body of the e-mails. Thus, some consumers may open the e-mails in their offices (perhaps in violation of company policies), and children unwittingly are likely exposed to sexually graphic material. The FTC also asserts that while the spam e-mails contain removal instructions, when a consumer clicks on the hyperlinks to be removed from the e-mail list, they are not in fact unsubscribed as requested. In addition, the FTC argues that the spam operation engages in “spoofing” — namely, using false “reply-to” or “from” information in e-mails. Thus, a consumer easily can get the impression that a sexually explicit e-mail has been sent by an innocent third party. Not only is this inaccurate, thus possibly causing damage to reputations, such innocent third parties also can receive thousands of e-mail replies in error. SO, WHERE IS THIS GOING? Not only does the FTC seek disgorgement of any improperly obtained gains resulting from the spam operation, in addition to restitution to victims of the operation, the FTC also seeks to permanently enjoin any further violations of the FTC Act by the spam operation. And pending trial, the FTC seeks a preliminary injunction that prohibits wrongful conduct prior to a full adjudication of the issues. In terms of the bigger picture, let’s hope that FTC action generally will help to curb the growing spam problem. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. Mr. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected]. To receive a weekly e-mail link to Mr. Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected].

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