ISP Steaming Over Coffee Spam

A Northern California ISP sued Kraft International Foods and the importer of Gevalia Coffee for violating CAN-SPAM and the Computer Fraud and Abuse Act.

Hypertouch, an ISP based in Foster City, Calif., sued Victor Th. Engwall & Co., owner of the Gevalia Coffee brand, and its parent company, Kraft Foods , for sending more than 8,500 unsolicited and unwanted e-mail advertisements for Gevalia.

The suit, filed Monday in the U.S. District Court, Northern District of California, asks for damages that could be more than $11.7 million.

Gevalia has industry-standard privacy policies clearly delineated on its corporate Web site. Consumers can opt out from telemarketing calls and from e-mail marketing, according to the company.

However, Wagner’s suit charges that e-mail addresses consumers provide to Gevalia actually end up in the hands of spammers. Hypertouch created a virgin e-mail address and submitted it to Gevalia’s own opt-out link as a test.

“Sure enough, three weeks ago that e-mail address, never used and given out only to Gevalia, started getting daily spam,” he said. “If you opt out, absolutely your address just gets passed on to other people.”

Some of the e-mails filed as exhibits bear the Gevalia name and unsubscribe links. But other e-mail was not sent directly by Gevalia, but rather by Bonus Bonez, a shadowy marketing company with a San Francisco post office box and a wild Internet reputation that includes the surmise that it’s run by the chairman of the South Carolina Republican Party.

Wagner chose to go after the brand marketers themselves, even though CAN-SPAM requires him to prove that the companies knew affiliates were spamming on their behalf. “We’re not even going to try to track down the rat’s nest of spammers they hired,” he said.

But deep-pocketed corporations can burn through hundreds of thousands of dollars defending themselves, Wagner acknowledged, money Hypertouch could be forced to pay if it couldn’t meet the high burden of proof CAN-SPAM set for complainants.

“You have to have quite a lot of nerve to face down a big corporation,” he said. “You have to make the decision you don’t want to let people get away with it just because it’s scary to fight back.”

According to the suit, Gevalia’s e-mail campaigns were paragons of bad practices, from misleading sender names, falsified headers with fake IP addresses, omitted physical addresses and non-working reply addresses.

In the most egregious example provided by Hypertouch, an e-mail sent to a Hotmail address seemed to be tailored to slip past spam filters. The missive hid the text of an ABCNews.com Web page behind the Gevalia graphic.

Hypertouch’s Wagner is a dedicated anti-spam activist with a record of success. He was the first to file an action under CAN-SPAM in March 2004, when he sued BlueStream Media and BVWebTies, owner of BobVila.com. That suit is in the process of being settled out of court.

Wagner also sues spammers and junk faxers in small claims court, under a variety of local and state laws. In February, he won four judgments totaling more than $10,000 against Discover Financial Services; Discover is appealing the rulings. Wagner said he had raised more than $70,000 in the past year, which he donated to non-profits and charities.