The following is a transcript of a telephone interview of anti-spam crusader Mark Mumma by Magilla Marketing editor Ken Magill.
Caution, rough language ahead:
Mumma: responding to a question asking if Omega’s lawyer, John Lawless, was being truthful when he said that even Mumma admitted that his address had been supplied to Omega: “I am, of course, going by the exhibit they filed. They indicated that whoever it was who requested my address be added did so from a Comcast cable connection, a cable subscriber in, I believe it was Plainfield, IL.”
Magilla: OK, but he says you said somebody opted your address in. Is he not being straight with me?
Mumma: Well, somebody did opt my address in. I don’t know who the hell it was. I have a pretty good idea. I don’t have any concrete proof.
Magilla: OK, who do you think did it?
Mumma: Well, the address that they e-mailed to was only used as a reply address in my Outlook client.
Magilla: Yeah, I know, but the thing I have to figure out … because when I read this court case at first, it looked to me like somebody, possibly Omega, had harvested addresses, which is illegal. And if they did that, it’s wrong but then, digging further, I’m getting the impression that somebody put your address onto their Web site, which would mean they’re responding to a request for information. And that changes things dramatically, and I’m just trying to find out, ‘is that true?’ And apparently it is.
Mumma: Well, I don’t know what it changes. I never authorized this individual, whoever he or she might be.
Magilla: But all you had to do was opt out given the information that they gave you in their e-mail addresses and you refused to do that. That makes a big difference.
Mumma: Well, yes and no. I didn’t refuse to opt out. What I did was simply refuse to click a link that contains an e-mail address that I never opted into to begin with.
Magilla: Are you verifying that somebody opted these addresses in? You’ve done that, correct?
Mumma: No, no, no, no. The address was never verified. If they had simply sent a confirmation saying: “If you really want to be on…”
Magilla: By legal definition, it does not have to be verified to be opted in, and you and I both know that. It was put into the company’s Web site, and the company was responding to a request for information put on that Web site by somebody else. That is a factually accurate statement, correct?
Mumma: I did not request the information.
Magilla: I didn’t say you requested it. I said somebody put the address in there and they were responding to a request for information. Is that true?
Mumma: Somebody signed me up. Obviously, somebody signed me up. I don’t know who it is.
Magilla: But you have an idea. Who was it? Was it a spammer?
Mumma: I don’t want to speculate, but I highly suspected it was a spammer. I e-mailed a spammer that day, I think it was December 4th, 2004, and the only spammer that I had communicated with that day was in Illinois. That’s where he’s physically located. And the only way someone could have that address was to have received an e-mail from me. That day, I had sent an e-mail to that individual, and as it turns out, the IP address that requested that my e-mail address start receiving Cruise.com junk mail was … It was the very same day that I sent an e-mail to this guy. He got all pissed off and had an attorney send me a letter, and he was going to sue me and all this stuff, and lo and behold, apparently, he just signed me up for a bunch of stuff. But, you know, whether that’s legal or not doesn’t make it right. It shouldn’t be right for me to be able to sign you up to somebody’s e-mail or to sign anyone up.
Magilla: You are correct. But, it looks it does look to me like Omega was unfairly targeted in this whole business.
Mumma: By the spammers who signed me up, you mean?
Magilla: Well, and then you. Him first and then…
Mumma: How’d I target them!?
Magilla: You put up information on a Web page with the woman’s picture, calling them spammers.
Mumma: Well, they sent me unsolicited e-mail.
Magilla: No they did not send you unsolicited e-mail. They sent you e-mail that was solicited. Now, it was solicited by somebody else. It simply was not solicited by you. But it was solicited, was it not?
Mumma: It was not solicited by me, no.
Magilla: That is true, but it was solicited by someone. They were responding to a request for…
Mumma: Unsolicited mail is in the realm of the person who is either asking or not asking for the mail. It was unsolicited mail. I did not solicit it. They didn’t bother to verify that I had solicited it. They just assumed that I had solicited the mail.
Magilla: Because somebody typed in your address. What are they supposed to do? … Well, I know what you think they’re supposed to do.
Mumma: They have a security hole on their Web site.
Magilla: As far as you’re concerned, they should do closed loop, fully verified opt-in. But that is not required by law. They were responding to a request for information.
Mumma: I never said it was required by law.
Magilla: Well, that’s the only way they could guard against what you claimed on a Web site they were doing wrong. Otherwise there is no way to guard against it.
Mumma: Well, let me ask you this. What is your opinion on the forged mail server name that they used?
Magilla: Honestly, it looked to me to be an honest mistake and that maybe they were a little sloppy, but it really did look to me to be, as the court said, an immaterial portion of the case. They had full contact information in their e-mail. You were able to get a hold of their lawyer…
Mumma: But they didn’t have full contact…
Magilla: Listen to me. Listen. You asked a question. I’m answering. You were able to get a hold of their lawyer with a single phone call. Now, we both know that e-mail from guys like Omega is not the problem. OK, but the thing is, you went after them because you could reach them, which as far as I’m concerned is wrong.
Mumma: Brick-and-mortar stores are a significant part of the problem.
Magilla: What percentage?
Mumma: I would say at least a third of the crap I get is from brick-and-mortar stores.
Magilla: That’s not an answer that answers the question. Just because a third of what you get is from brick-and-mortar stores doesn’t mean that they are the problem, and it doesn’t answer what percentage they are. In fact, the FTC put out a report that said 90-something percent of them are adhering to opt-out requests. So, the FTC would disagree with you on this.
Mumma: Ninety percent of the spam I get complies with Can Spam. Just because spam complies with Can Spam doesn’t mean it’s not spam.
Magilla: Well, then if it complies with Can Spam, all you’ve got to do is opt out. That’s what you could have done with Omega. All you had to do was give Omega your e-mail address and this would have been over, but the thing is you’re a crusader who decided you were going to slam this company on your Web site, and now you’re getting sued for it. And maybe you should have been a little more careful.
Mumma: Well, they haven’t won yet.
Magilla: That’s true.
Mumma: Do you actually think they’re going to win this defamation case against me?
Magilla: I would never make a prediction about a U.S. court of law.
Mumma: But you honestly believe they spelled Cruise.com wrong? [He’s referring to whether the alleged misspellings in Omega’s headers were purposeful.]
Magilla: Mark, I don’t know. But I do know they weren’t trying to hide. And from what I’ve read, this is a company with 2,700 employees [I’m wrong here. The actual number is 1,200, according to Lawless] and there’s no reason on earth for them to risk damaging their brand by sending someone unsolicited e-mail. It just doesn’t make sense.
Mumma: If they were that concerned about sending someone unsolicited e-mail, they would go the extra step and install some type of confirmation system. They don’t feel they need to do that. And you know, they’re right. Legally, they don’t.
Magilla: You’ve got it.
Mumma: Morally and ethically, they should.
Magilla: Well that’s up for debate, isn’t it. You sued them because someone stuck your address on their Web site and they responded to a bona fide request for information.
Mumma: That’s not true. That’s not what happened at all.
Magilla: Did they not respond to a request for information?
Mumma: I don’t know that they did or not. That’s their story. That’s what they claim.
Magilla: According to John Lawless, you verified, and you just verified to me, that someone put your address on their Web page and they responded to a request for information. They didn’t harvest the address. They did not go on the Internet and pick up your spam trap. Somebody did that. And all you had to do was supply the e-mail address and opt out.
Mumma: I did.
Magilla: No you didn’t. You supplied 300 domain names. You did not use the mechanism supplied.
Mumma: Yeah. Anytime I use the mechanism supplied, I just get more spam.
Magilla: Nah, that’s not true. That wouldn’t have been true with these guys and you know it.
Mumma: [said something, but his phone was breaking up]
Magilla: Mark. It’s not true and you know it wouldn’t have been the case with these guys.
Mumma: Look, you’re a spammer. You’re just like them. Whatever.
Magilla: I’m a spammer?
Mumma: You’re going to think like a spammer.
Magilla: [laughs] I’m a spammer?
Mumma: Well, you sound just like one. You sound like someone who’s a proponent of big time e-mail marketing.
Magilla: No, I’m a big-time proponent of reasonable and responsible legal action, which you are not taking. I didn’t put that very well, but obviously you’re a nuisance litigator.
Mumma: Yeah, well. That’s your opinion and you’re entitled to it.
Magilla: Well, it seems to me to be true. All you had to do was opt out. And you could spend your resources going after the people who are the real problem.
Mumma: OK, Ken, I get 8,333 spams per day. How long does it take to opt out of each one?
Magilla: What I’m saying is the ones who give you problems… It’s not Omega. You’re going after the wrong target. You’re policing the wrong neighborhood. That’s the problem with guys like you. You can’t get the people who are the problem, so you go after the people who you can find.
Mumma: That doesn’t answer my question at all, does it?
Magilla: The question was rhetorical. So why would I answer something like that? What I’m saying that you went after someone who’s not the problem.
Mumma: You’re saying that I have to opt out in order to proceed with my opt-out request, I have to click the link, is that not what you just said?
Magilla: I said in Omega’s case you should have clicked the link.
Mumma: How was I to know that they wouldn’t be one of the ones who would spam me back?
Magilla: If you have even some semblance of common sense, you can look at a company like Omega, especially the fact that they had all their contact information their e-mail, and understand they are probably not part of the problem and that they will probably honor opt outs. They had their brand and their address and their contact information right there.
Mumma: They’re either abusing my resources by sending me crap I didn’t ask for or they’re not. So I don’t see how you can say they’re not part of the problem.
Magilla: I can say they’re not part of the problem because they were responding to a request for information and you did not use the opt-out mechanism supplied. It’s very simple.
Mumma: I don’t have time.
Magilla: Yes you do. You had time to call them. You had time to call them and you had time to sue them.
Mumma: [breaking up]
Magilla: Mark, you had time to call them, and you had time to sue them.
Mumma: Listen you cowardly son of a bitch, I don’t have time to click 8,333 e-mails a daaay! Moron! What are you, some kind of a fuckin’ idiot?!
Magilla: You had time to sue them, did you not?
Mumma: I may find time to sue you if you defame me in your article, which it sounds like you’re going to.
Magilla: All I’m going to write is what you said.
Mumma: Well what I said was I don’t have time to click out of 8,333 e-mails a day. And to expect someone to do that is insanity.
Magilla: No one is expecting you to do that.
Mumma: You just said I should have clicked the opt-out link.
Magilla: But did I say you should have click 8,300? Did those words come out of my mouth?
Mumma: Well, you’re saying I should click this. How do I know which ones to click? Let me ask you that?
Magilla: I believe I just said when they give all their contact information and their phone number and you can reach their lawyer that quickly, you should have known that this was a company that was not trying to hide.
Mumma: Well then why did they forge the name of their mail server?
Magilla: I believe the judge answered that question for you. He called the mistake immaterial.
Mumma: The judge was confused.
Magilla: The court has ruled on that one.
Mumma: I know they have, but they don’t even know what a header is.
Magilla: You’re going to call a judge confused who disagrees with you.
Mumma: No, I’m going to call a judge confused who thinks there was contact information in the header when contact information was not in the header. I’m going to disagree with a judge who says all the contact information I needed was in the header when there was no contact information in the header. Do you even know what a header is?
Magilla: Of course I do. They had their phone number and address in the e-mail, Mark.
Mumma: They all have addresses.
Magilla: No they don’t.
Mumma: They all do.
Magilla: No they don’t. Mark. No, they don’t.
Mumma: Why don’t you get your ass down here and take a look at my inbox instead of telling me what’s in it.
Magilla: [laughs]
Mumma: Stop being so fuckin’ unreasonable. You’re an idiot.
Magilla: I’m being totally reasonable. They had their phone number, and you got a hold of their lawyer with one phone call.
Mumma: That was after I tried to find out who FL-Broadcast.net was [a name allegedly in Omega’s header].
Magilla: That’s irrelevant. One phone call and you got a hold of the company. All you would have had to do is give them your e-mail address and you’d have never heard from them again.
Mumma: No, there were about 12 phone calls. I called Cruise.com 12 times before I called Lawless.
Magilla: OK, but you got Cruise.com with one phone call. Did you not?
Mumma: Yeah, after 12 unsuccessful phone calls. You’re trying to make it sound like this was some simply deal to get out of and it wasn’t. OK, you can spin it any way you want, but this was not some simple case of mistaken identity that I could just click out of knowing they weren’t going to send me any more crap.
Magilla: How do you know? You didn’t try.
Mumma: I have been testing opt outs for 10 years.
Magilla: But you didn’t try, did you?
Mumma: You don’t know what I did.
Magilla: All I’m going by is court records. And in court records, you said you didn’t. All I’m doing is quoting you now, Mark. You said you didn’t try.
Mumma: What you’re doing is you’re living in an imaginary fairytale land where everybody knows which links are safe to click and which aren’t and that’s just not the case.
***
Mumma: I don’t know that Omega’s not harvesting.
Magilla: Well apparently you do know they’re not harvesting because you’ve admitted in court…
Mumma: I know no such thiiiiing!! I know no such thing.
Magilla: Mark, you’ve admitted it to me.
Mumma: You know, I can rewind the tape and we can listen to it.
Magilla: You know what. I can rewind the tape, too.
Mumma: Well, why don’t you do that?
Magilla: That’s my job. Don’t think you’re the only one taping this conversation.
Mumma: Oh, I don’t. I don’t care. The more the merrier. If you’ve got five of recorders, slam ‘em all on. I don’t care.
Magilla: All I need is one. One and you.
Mumma: Umkay, well I’m doing one better. I’ve got video cameras running and welcome to my movie. Welcome to Slappsuit. You’re going to be on Slappsuit.com. [Mumma is apparently making a documentary of his crusade.]
Magilla: [laughing] What are you making a movie of?
Mumma: I’m doing a movie about this Slappsuit that I’m involved with Omega.
Magilla: You said welcome to my movie. What’s it going to show involving me? It seems you’re going to have a blank spot.
Mumma: I’m going to have a portion of this phone call in the movie, actually.
Magilla: I think that would be great.
Mumma: I’m glad you approve.
Magilla: I think you should run the whole thing.
Mumma: OK, well good luck to you in prison…
Magilla: [laughing] What am I going to jail for?
Mumma: Well, I don’t know.
Magilla: You just said ‘good luck in prison.’ What am I going to jail for?
Mumma: I don’t know. A dishonest bastard like you will probably get caught doing something wrong.
Magilla: What makes me dishonest? All I’ve done is ask questions.
Mumma: Yeah. Right. Of course you have questions. You just don’t want to hear the answers. I tell you what, why don’t you give old John [Lawless] a call back and you guys plan your next gay weekend together, or whatever it is you plan on doing.
Magilla: [laughing really hard] Now because I don’t agree with you I’m gay. Are you a homophobe?
Mumma: No, not at all.
Magilla: Well you just said ‘call John. Plan your gay weekend together’ as if it were an insult. Do you know where my office is?
Mumma: It’s in New York somewhere.
Magilla: It is in the gay epicenter of the universe [the Chelsea neighborhood in Manhattan.].
Mumma: Well then congratulations. It looks like I hit the nail on the head.
Magilla: [laughing] It’s not an insult.
Mumma: I’m not trying to insult you.
Magilla: Yeah, you are. You said call John and plan your gay weekend together like it’s an insult. And it sounds like you’re a homophobe.
Mumma: I’ve never actually seen John Lawless. Is he a good looking guy?
Magilla: [laughing] I don’t know.
Mumma: If he’s a hot guy, maybe it’s a compliment to you, you know? I’ve never actually seen the guy.
Magilla: Are you going to put this part of the conversation into your movie, too?
Mumma: If you’d like.
Magilla: I think you should. I think it says a lot.
Mumma: Yeah, it says a whole bunch, and the coolest thing of all is in New York I don’t think it’s actually legal to tape someone unless you tell them first.
Magilla: New York is a one-party state [meaning that if one of those being taped knows, it’s legal]. You see, you just keep grasping.
Mumma: I know that with editing, you’re going to be able to make me say anything. I’m sure I’ll probably be accused of being some kind of cross-dressing baby killer or something by the time you’re done with me, so whatever.
Magilla: [laughing so hard I can barely speak] All I have to do is quote you. Who needs to make this up? Why would I make anything up when you’re saying the things you’re saying?
Mumma: It’s the same thing like, ‘why would I make up a spam violation when I have so many to choose from?’ Lawless’s whole deal is he thinks I made this up. He thinks, I guess that I drove … I don’t know what their theory is but I guess they think I maybe snuck into Illinois one night and stealthily, you know, broke into somebody’s house and requested some e-mail from their computer and then snuck back home and to where no one even knew I was gone. Yeah, I don’t really know what he’s thinking. I don’t know what’s going on with this guy.
Magilla: I think what he’s thinking is that that somebody put an e-mail address on their Web site and the company responded to a request for information. Now, that may or may not have been you. But apparently you are also aware of it.
Mumma: I wasn’t aware until the…
Magilla: You said at the beginning of this conversation that these guys were responding to an e-mail request. You said it.
Mumma: But there were not responding to my request.
Magilla: But you said they were responding to a request. And you said you suspect you know who it is.
Mumma: Let me make this perfectly clear for you, Ken. They were not responding to any request by me or any request that somebody was authorized to make on my behalf.
Magilla: OK, I get that much.
Mumma: Alright, well you have a good day.
Magilla: You, too.
Network
