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E-mail a Friend, Pay $2,000

By Ed Foster, Section The Gripelog
Posted on Fri Oct 14, 2005 at 12:02:16 AM PDT

People are willing to go great lengths to try to block spam, and that's certainly understandable. Still, I wonder how many of those who use the Spam Arrest whitelist service realize just how challenging Spam Arrest has now made its challenge/response approach?

"I was recently blocked from sending an email to a correspondent who had signed up for SpamArrest," a reader wrote. "It was the normal sort of thing - get an email requesting verification, visit the site, enter the secret word, click through. However, this one has a twist."

Below the authentication code on Spam Arrest's verification page, the reader was confronted with this "sender" agreement:

"SENDER AGREEMENT - By clicking the "VERIFY" button above, and in consideration for Spam Arrest, LLC forwarding your e-mail (and any e-mails you may send in the future) to the intended recipient (the "Recipient"), you agree to be bound by the following Sender Agreement:"

"You represent and warrant to Spam Arrest and the Recipient that any e-mail you desire to send to the Recipient is not "unsolicited commercial e-mail" i.e., the e-mail does not primarily contain an advertisement or promotion of a commercial product, service or Web site; unless the Recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the Recipient's own initiative. Further, you represent and warrant that your transmission of any e-mail does not violate any local, state or federal law governing the transmission of unsolicited commercial e-mail, including, but not limited to, RCW § 19.190.020 or the CAN-SPAM Act of 2003. You understand and acknowledge that it is fair and reasonable that you agree to abide by the restrictions set forth in this agreement. You acknowledge and agree that this agreement is central to Spam Arrest's decision to forward your e-mails to the Recipient. Accordingly, if you violate this agreement, Spam Arrest and the Recipient shall be entitled to (1) temporary and/or permanent injunctive relief to restrain any further breaches or violations of this agreement; and (2) damages in the amount of two thousand dollars ($2,000.00) for each violation of this agreement. You acknowledge that such remedies are appropriate and reasonable in light of the costs and expenses Spam Arrest incurs as a result of eradicating and filtering unsolicited commercial e-mail. You acknowledge that the $2000.00 remedy is a reasonable estimate of Spam Arrest's and the Recipient's actual damages. This agreement is governed by the laws of the State of Washington and the exclusive venue for any action related to this agreement shall be held in the state and federal courts located in Washington. You hereby waive any right to object to venue or jurisdiction based on inconvenient forum, lack of personal jurisdiction or for any other reason."

Not surprisingly, the reader decided he'd forego sending the e-mail to his friend rather than risk $2,000. "I've used this kind of spam blocking service before, such as Earthlink's," the reader wrote. "But I've never seen anything like this hideous 'agreement' before. No thanks."

What's somewhat ironic about this is that Spam Arrest used to make a habit of sending unsolicited commercial e-mail of its own to senders, a practice they ultimately halted when the hue-and-cry got a little too loud. But at the time they told me they believed they still had a right to market to their customers' correspondents. So is this "sender agreement" just a new way for them to get a little revenue from that quarter?

I quite agree with the reader that it would be stupid for him or anyone else trying to send e-mail to a Spam Arrest customer to accept this nasty little EULA. No matter how certain you are that the message you're sending isn't spam, you'd be crazy not to at least first read the entire Can Spam Act (which, by the way, is pretty dreadful reading) and the Washington state law that the agreement refers to before verifying with Spam Arrest. And if you don't happen to have a lawyer on retainer in Seattle, you might want to get one just in case Spam Arrest in its judgment sees your message in a different light than you do.

I can't help but wonder how many Spam Arrest customers are aware of the rather dicey position that their correspondents are placed in by the company's sender agreement. Our reader would certainly love to be able to point it out to his friend, but it's not worth risking $2,000. After all, Spam Arrest is likely to view any message that might cost it some business as all too commercial and very much unsolicited.

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E-mail a Friend, Pay $2,000 | 34 comments (34 topical) | Post A Comment

True, it's over the top, but...[ Reply to This ] (none / 0) (#1)
by wantobe on Fri Oct 14, 2005 at 03:38:12 AM PDT

Okay, the Spam Arrest EULA is over the top with it's $2000 per "violation", but is it any different than what some readers here have proposed for their own "personal EULA" designed to stop companies from spamming them? Few of your readers would complain if a major spamming company agreed to the EULA and then was presented with a huge bill for violating it, and it's pretty clear what would constitute a violation of the EULA even if you don't read the CANSPAM act.

The purpose of Spam Arrest is to stop unsolicited commercial email, and the challenge-response is obviously intended for friends of the people who use the service to be able to send them email, not spam. I probably wouldn't agree to it either, just out of spite, but really it's not that big a deal.

Rob Miles
--
There are 10 kinds of people in the world; those who understand binary and those who don't.
[ Reply to This ]

EULAs are ALL ridiculous. Why pick on Spamarrest[ Parent | Reply to This ] (none / 0) (#27)
by acensor on Thu Nov 22, 2007 at 08:37:01 AM PDT

Most every EULA I have read is (a) heavily weighted toward protecting the EULA writer (b) with little consideration for being reasonable to the "signer" (c) questionable as to whether ,IF one had the resources to challenge it, it could really stand up in a court on the onerous unreasonable aspects... or at all. Basically most EULAs say "we promise you nothing and you promise us everything." Once I clicked on the AGREE button on a EULA, as is usual without reading it, and a dialog box popped up saying CONTRATULATIONS! Out timer indicates you read our agreement at 8345 words per second. Surely a world record! I laughed of course. They were saying "You know you don't read it. We no you don't read it. Now you know that we know you don't read it. Yeah, it's silly, but everyone does this and our lawyer made us do it." So why pick on Spamarrest and take something you know they'll never do (come after you for $2000) unless perhaps you really do something nasty to them? A.C.

[ Parent | Reply to This ]

yes[ Parent | Reply to This ] (none / 0) (#36)
by maderikapapa on Sat Jun 28, 2008 at 01:05:12 AM PDT

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[ Parent | Reply to This ]

arbitrary amount[ Reply to This ] (none / 0) (#2)
by mbeatle on Fri Oct 14, 2005 at 05:55:36 AM PDT

$2000 is a reasonable estimate of Spamarrests costs? How absurd. They might as well say you agreed to pay them 2 billion dollars. Its completely arbitrary. Is this type of thing enforecable anyways?

[ Reply to This ]

But this helps prevent it from being thrown out...[ Parent | Reply to This ] (none / 0) (#3)
by Anonymous User on Fri Oct 14, 2005 at 06:15:13 AM PDT

Think about it. If they charged $2 billion per "incident", that would instantly be thrown out of court--not to mention the inability of 99.9% of all people out there to pay it. People would just declare bankruptcy and the court couldn't even attempt to garnish wages. $2000 is a much more reasonable amount to go after someone. (Not that I think this is absurd...)

Newshosting.com has a similar EULA for its customers who spam Usenet thru their service. IIRC, they charge $100/hour (5 hours minimum) for each "incident" of spam sent onto Usenet thru their service. Not that they could ever enforce it, but it's reasonable, IMO.

[ Parent | Reply to This ]

How long does it take you to delete a spam message[ Parent | Reply to This ] (none / 0) (#5)
by mbeatle on Fri Oct 14, 2005 at 07:51:48 AM PDT

I take your point. Still, how did they arrive at $2000? It takes a person earning $100 per hour, 20 hours to delete the one email message you tried to send through our service. We bought a $2000 computer, solely to delete the one email message you tried to send through our service. I don't see it. They are charging an arbitrary amount. Why not $1500, or $3000, or $5000?

[ Parent | Reply to This ]

small claims court[ Parent | Reply to This ] (none / 0) (#24)
by Anonymous User on Thu Oct 27, 2005 at 11:28:18 AM PDT

The $2000 is probably the limit of small claims where they are located. Just a guess but I suspect the number is not arbitrary.

[ Parent | Reply to This ]

I don't know[ Reply to This ] (none / 0) (#4)
by Garminski on Fri Oct 14, 2005 at 06:51:59 AM PDT

It doesn't seem all that unreasonable to me (and I am no fan of EULA's). As far as EULA's go it does read very straight forward. The purpose of the $2,000 "fine" is to discourage SPAM. I think if they tried to go after a friend of a customer as suggested above that the story would spread like wild fire across the internet and they would quickly loose customers. In order to be enforcable against a spammer (who presumably makes money and has access to a lawer) they have to clearly state what constitutes a SPAM message. By citing written law they have clear definitions to work with if they try and collect the money from a spammer. Otherwise, the spammers lawyer will just get them off the hook by claiming they didn't have a clear definition of what type of "communication" is blocked. This seems to be aimed at spammers and not the public at large. I would accept this agreement to send my friend an e-mail.

[ Reply to This ]

SpamArrest[ Parent | Reply to This ] (none / 0) (#20)
by Anonymous User on Wed Oct 19, 2005 at 01:03:11 PM PDT

Thank you SpamArrest shill!!!!!! By the way I have some desert property I guarantee to grow grass. Trust me; sign right here

[ Parent | Reply to This ]

Question[ Parent | Reply to This ] (none / 0) (#21)
by Garminski on Wed Oct 19, 2005 at 03:02:29 PM PDT

What is a shill? I am not familiar with that word. I posted an opinion. There is no need to get rude or ridiclue. If you disagree, please do so by listing your facts and/or reasoning. Not by name calling. Children call each other names. I would think an adult ( and probably one that is a "professional") would act better. As others have stated, the wording of this EULA would seem to be aimed at people who send out e-mail as a commerical enterprise to make money. It has been discussed here many times that the way to discourage SPAM it to make it not economical to use. This is a step in that direction. Maybe not a good step, but a step non-the-less and one that is interesting to debate in forums such as this. Name calling is not only childish but also tends to put a chill on discussion.

[ Parent | Reply to This ]

yes[ Parent | Reply to This ] (none / 0) (#33)
by maderikapapa on Fri Jun 27, 2008 at 09:28:13 PM PDT

I just blacklist all whitelisting messages[ Reply to This ] (none / 0) (#6)
by david anderson on Fri Oct 14, 2005 at 09:42:15 AM PDT

I've always hated these services, whether or not they come up with some BS click through agreement.

If someone signs up for one of my mailing lists, and I get one of these reply e-mails, then instead of clicking on the link to validate my address, I put theirs in my blacklist file that is shared between all my accounts.

[ Reply to This ]

Spam Arrest's Habit[ Reply to This ] (none / 0) (#7)
by Anonymous User on Fri Oct 14, 2005 at 09:57:21 AM PDT

I'm a Spamarrest customer.

I don't have any problem with the EULA. Sure the $2000 is very arbitrary, but the idea that if spammers somehow authorize themselves, they are in violation of the EULA and are penalized, is brilliant. Plus they share any money, minus their legal costs, with the customer (me)!

My guess is that Spam Arrest is not going after anyone, but keeping their options open in case a spammer does try to subvert the C/R system. Also, they have a "Report as Spam" button on my inbox messages. I sincerely doubt they're reading through the mail otherwise.

Also, in regards to your comment "Spam Arrest used to make a habit of sending unsolicited commercial e-mail of its own to senders, a practice they ultimately halted"; you're completely wrong.

If you look into this at any depth, you'll see that this was a one time mailing, not a "habit", and "ultimately" in your vocabulary must be a few hours.. It's been almost 3 years, they haven't done it since, and their service just keeps getting better and better.

[ Reply to This ]

paranoia[ Parent | Reply to This ] (none / 0) (#10)
by DaKnees on Fri Oct 14, 2005 at 02:04:21 PM PDT

Is it just me, or does this original post, and most of the responses here, reek of paranoia? Do you HONESTLY think Spam Arrest would arbitrarily go after you for emailing every day messages to a friend? I highly doubt they would take any action whatsoever unless a message is reported by their customer. If your friend reports something you've sent as spam, you've probably got bigger fish to fry than Spam Arrest's little EULA.

It seems to me that, in order to make Spam Arrest's service valid, they need to put something like this in place. There must be some kind of stipulation that you should not be validating yourself if you do not have permission to be emailing this user. Otherwise, the entire service is nothing more than a speedbump. A very good speed bump, of course. Admittedly, very few spammers would actually take the time to respond to a challenge response (if they even got the returned message at all), but I'm sure there are some out there. Putting terms and conditions on the validation process turns the process into less of a speedbump and more of a roadblock. They are not just making it annoying and a hassle for you to spam someone, but they're now making it illegal. If I were a Spam Arrest customer I would appreciate this.

Additionally, and this was touched upon by another poster, the backlash against Spam Arrest for going after their users' valid friends and contacts would be huge. Not to mention that the time and cost of pursuing this with Customer Joe's buddy wouldn't be worth it for a piddly $2000. This is why I am so confident that this will only be exercised when the customer actively reports misuse of the validation process. Plus, it is unlikely that some email you forward your friend could be legally ruled as spam should a situation like the one you are all dreaming up arise and make its way into the legal system.

I get really annoyed at the paranoia many "wise old internet users" show when it comes to various terms and conditions used on web sites and software. If you've been on the internet for any extended period of time, and especially if you work in the industry, you know what idiots the average users are. You honestly don't see why many business need to protect themselves and their customers? Fine. Don't use their products if you are so afraid of some paranoid scenario in which a company which depends on your business decides they need a few extra bucks so they'll find a way to say you've violated their terms and conditions. I will enjoy my services and software with the knowledge that these companies not only work hard to protect themselves, but also the mailboxes of their customers.

[ Parent | Reply to This ]

Pot, meet kettle[ Parent | Reply to This ] (none / 0) (#14)
by Anonymous User on Tue Oct 18, 2005 at 10:32:51 AM PDT

Whitelisting itself "reeks of paranoia". Yes, a minority of whitelist users just want to eliminate spam. But the vast majority of those I've run into are aggressively paranoid about who gets into their inbox. Also, many use it as a method of ignoring email entirely (what they don't receive, they don't have to deal with).

In my 12 years online I've observed this behaviour and attitude to be so consistent with whitelist users, that I take a whitelist challege to be evidence that this is probably someone I don't want to deal with anyway.

[ Parent | Reply to This ]

Get a grip![ Parent | Reply to This ] (none / 0) (#16)
by Anonymous User on Tue Oct 18, 2005 at 03:41:18 PM PDT

Hey, I don't use a whitelist service any longer but I used to use SpamCop. I had to in the past because my inbox was starting to fill up with the most odious spam imaginable. I have owned my domain name since 1997 and I refuse to be forced out of using my own personalized e-mail addy because of spammers. It's not paranoia, it's a reaction to logging in and finding scores of spam messages cluttering and obfuscating real and necessary communication. So don't be so quick to sniff at whitelists. At their best, they definitely serve to cut spam to zero. What really stinks is that after several years of zero junk mail, spam is beginning to creep back into my life in spite of every safeguard I have employed. You know what you can't protect your addy from? Well-meaning friends and acquaintances who send out jokes and other cute little time-wasters and don't know to "blind copy" everyone. Also, the poor saps who have viruses, trojans, and other nasty stuff on THEIR computers have managed to snag MY addy from their address books and get me that way too. Sigh. Methinks I too will go search eBay for that Princess phone.

[ Parent | Reply to This ]

yes[ Parent | Reply to This ] (none / 0) (#30)
by maderikapapa on Fri Jun 27, 2008 at 09:25:59 PM PDT

yea, right[ Parent | Reply to This ] (none / 0) (#15)
by Anonymous User on Tue Oct 18, 2005 at 02:23:41 PM PDT

Way to "clear the air", SpamArrest employee. Talk about a troll...

[ Parent | Reply to This ]

yes[ Parent | Reply to This ] (none / 0) (#34)
by maderikapapa on Fri Jun 27, 2008 at 09:28:22 PM PDT

How about hte phone?[ Reply to This ] (none / 0) (#8)
by tcsbiz on Fri Oct 14, 2005 at 12:05:54 PM PDT

If this catches on maybe no one would use email and just "dial up" their friends. At least call the friend and tell him you won't send a message because of the EULA. Maybe the friend is missing other emails and doesn't know it, yet. Gettin' ready to dust off the 'ole POTS. Maybe I'll use that pink princess phone I was going to sell on ebay. Tom.

[ Reply to This ]

Phone the Friend and Make Him Authorize Your Email[ Parent | Reply to This ] (none / 0) (#12)
by Anonymous User on Tue Oct 18, 2005 at 09:59:29 AM PDT

Not only should you phone the friend and advise him, there's probably a way he can add you to his approved list. Then the risk is all his, not yours.

[ Parent | Reply to This ]

yes[ Parent | Reply to This ] (none / 0) (#32)
by maderikapapa on Fri Jun 27, 2008 at 09:28:06 PM PDT

It's Arbitrary[ Reply to This ] (none / 0) (#11)
by Will Fastie on Tue Oct 18, 2005 at 09:31:10 AM PDT

Full disclosure: I am the reader who mentioned this to Ed.

My primary problem with the aqreement is that it is completely arbitrary. I could send an innocent email to a correspondent through this service that the correspondent decided was a violation of the agreement. What an easy way to pick up two grand.

And what are my defenses? What's left after I've agreed:

The agreement is "fair and reasonable;"

I can be enjoined;

I will pay damages;

The above remedies are "reasonable;" and

I can't waive venue for any reason.

I have signed many agreements during my consulting career. I would never sign any agreement that pre-arranged penalties and deprived me of basic rights.

What do I gain if I execute this agreement? As far as I'm concerned, nothing. In this case, I simply picked up the phone, called my correspondent, and asked him to place me on his white list. Problem solved, no onerous agreement involved.

[ Reply to This ]

Why not just give them the pin to your account too[ Reply to This ] (none / 0) (#13)
by Anonymous User on Tue Oct 18, 2005 at 10:07:27 AM PDT

These "what's the problem if you have nothing to hide or I'm not doing anything wrong" crowd is the problem. You have agreed IN advance that if THEY decide that your email is spam they can collect $2000 from you just by asking for it. If you refuse they can take you to court and win as you have already waived any defense. You have no idea what the laws of Washington State or for that matter the CanSpam Act either. So if you are all that comfortable putting your financial well being under their total control, why not just give them the pin to your checking account too. After all, you know they won't use it. Right!!! If this catches on, you won't have ANY rights to anything and NO defense against anyone!! If you will not defend your own rights, then just whom do you think will???? Defend em or lose em.

[ Reply to This ]

Yes. I agree. This company is legit now, but ....[ Parent | Reply to This ] (none / 0) (#17)
by ekuns on Tue Oct 18, 2005 at 03:58:36 PM PDT

... how many once-legit companies have turned on their customers to make an extra dollar? Look at Norton, for example. If 10 years ago you said that Norton would one day became a hated word in computing, a clear sign of the worst practices of big business, who would think that was possible?

Many companies are totally above board until the original people who created the company sell to a bigger player. At that point, how things have "always been run" is totally insignificant. All that matters is what contracts exist and how they can be exploited. In this era where some companies seem to care more about next quarter's profits than whether they'll be in business at all in two years .... is this really so inconceivable?

I agree with the parent poster. Sometimes paranoia is justified. Even if the company in its current incarnation is totally above board, that does not mean that at some future date, a predator will buy the company and will use agreements like that to make a quick buck. Never sign an agreement that can be used against you unless you are prepared for it be to used against you.

[ Parent | Reply to This ]

Never...[ Parent | Reply to This ] (none / 0) (#19)
by Anonymous User on Tue Oct 18, 2005 at 11:05:30 PM PDT

And never write anything that characterizes Micro$oft as an "Evil Empire", even in jest, because at some future point in time you might be considered as an "impartial" panel member reviewing technology, only to have your dusty ol' post brought to light!

[ Parent | Reply to This ]

yes[ Parent | Reply to This ] (none / 0) (#31)
by maderikapapa on Fri Jun 27, 2008 at 09:26:15 PM PDT

yes[ Parent | Reply to This ] (none / 0) (#35)
by maderikapapa on Fri Jun 27, 2008 at 09:28:27 PM PDT

Am I the only one ....[ Reply to This ] (none / 0) (#18)
by Anonymous User on Tue Oct 18, 2005 at 08:26:20 PM PDT

that saw the word "Commercial" in the eula? If I email you and I represent only myself, rather that a corporation, and I do not try to sell you any goods or services, or try to get you to join some investments, etc, how can it be "commercial"? If all I'm going to say is "Hi, Joe, how's the family", what are you going to accuse me of?

[ Reply to This ]

SpamArrest ARE spammers[ Reply to This ] (none / 0) (#22)
by Anonymous User on Thu Oct 20, 2005 at 04:06:16 AM PDT

SpamArrest made it very clear which side of the fight they're on when they decided to spamvertize themselves. They're now -- correctly -- blacklisted along with other spammers. I strongly recommend that everyone else do the same and thereby remove them from your view of the Internet.

[ Reply to This ]

yes[ Parent | Reply to This ] (none / 0) (#28)
by maderikapapa on Fri Jun 27, 2008 at 09:06:45 PM PDT

SpamArrest uses C/R; therefore they are spammers[ Reply to This ] (none / 0) (#23)
by Anonymous User on Fri Oct 21, 2005 at 04:09:49 AM PDT

Previous poster (observing SpamArrest's history of spamvertising themselves) is correct, but they are also spamming on an ongoing by basis by using C/R. (As is everyone else using C/R, a "technique" long since thoroughly discredited. If you don't understand why, use a search engine and learn.) SpamArrest are spammers; their customers are spam-supporters. Blacklist them all-- for life.

[ Reply to This ]

yes[ Parent | Reply to This ] (none / 0) (#29)
by maderikapapa on Fri Jun 27, 2008 at 09:25:07 PM PDT