The Federal Trade Commission has settled charges that Brian Westby and Martijn P. Bevelander employed spam that used deceptively bland subject lines, false return addresses, and empty “reply-to” links to expose unsuspecting consumers, including children, to sexually explicit material. The agency alleged that Westby and Bevelander used the spam in an attempt to drive business to adult Web sites titled “Married But Lonely.” The settlement bars the use of false subject lines and false header information in e-mail and requires that the defendants give up $112,500 in ill-gotten gains. The activity in this case predates the CAN-SPAM Act, which became effective on January 1, 2004.
In April 2003, the FTC filed suit charging that the defendants sent spam with subject lines that would disguise the contents of the e-mail. For example, subject lines have included “Did you hear the news?” and “New movie info.” When consumers opened the e-mail messages, they immediately were subjected to sexually explicit solicitations to visit the defendant’s adult-oriented Web sites. Because of the deceptive subject lines, consumers had no reason to expect to see such material. In some cases, consumers may have opened the e-mails in their offices, in violation of company policies. In other cases, children may have been exposed to inappropriate adult-oriented material, the FTC complaint noted. The defendants’ spam provided a hyperlink or an e-mail address for consumers who wished to “unsubscribe” or stop receiving e-mail in the future. When consumers used the hyperlink or e-mail address in an attempt to get off the mailing list, they received an error message – they could not unsubscribe.
The FTC also alleged that the defendants used false “reply to” or “from” information in the e-mail, making it appear that some innocent third party was the sender. This practice is known as “spoofing.” As a result, thousands of undeliverable e-mails flooded back to the computer systems of these third parties, deluging their computer systems with an influx of
undeliverable spam. In addition, this practice unfairly portrayed these innocent bystanders as duplicitous spammers, often resulting in their receiving hundreds of angry emails from those who had been spammed.
The settlement bars the defendants from using deceptive subject lines, false header information, or making false claims that they will remove consumers from e-mail lists. It also bars spoofing. In addition, the defendants have given up $112,500 in ill-gotten gains they made from these alleged illegal activities; $87,500 from Westby and $25,000 from Bevelander. The settlement also contains recordkeeping provisions to allow the FTC to monitor compliance.
Brian D. Westby is based in Ballwin, Missouri, a suburb of St. Louis. Martijn P. Bevelander lives in the Netherlands.
The Commission vote to accept the settlement was 5-0. It was filed in U. S. District Court for the Northern District of Illinois, Eastern Division and has been signed by the Court.
NOTE: This stipulated judgment and order is for settlement purposes only and does not constitute an admission by the defendants of a law violation. A stipulated judgment and order has the force of law when signed by the judge.
Copies of the stipulated judgment and order, as well as other documents pertaining to “Project Busted Opportunity,” are available from the FTC’s Web site at http://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint, or to get free information on any of 150 consumer topics, call toll-free, 1-877-FTC-HELP (1 877-382-4357), or use the complaint form at http://www.ftc.gov. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.
(FTC File No. 032-3030)