Crazy SOPA-Like Attempt to Hold International Banks Liable for Pharmacy Spam Fails on Jurisdiction Grounds–Unspam v. Chernuk

[By Venkat Balasubramani with comments from Eric Goldman]

Unspam Technologies, Inc. v. Chernuk, 2013 WL 1849080 (4th Cir. May 4, 2013)

We’ve mentioned “Project Honeypot,” the efforts of a company (founded by Matthew Prince) to track down and prosecute spammers. This lawsuit was ambitious in its scope and suitably quixotic. Like SOPA, it sought to attack pharmacy spam by going after the money.

Unspam (operator of Project Honeypot) and John Doe sued two individuals for pharmacy spam. They also named a slew of international banks who allegedly provided transaction processing services to pharmacy spammers. shutterstock_110129759.jpgThe banks submitted affidavits demonstrating that they had no activity or customers in the United States, and therefore they should not be subject to personal jurisdiction in the U.S. The district court agreed, granting the banks’ motion to dismiss on jurisdictional grounds. Unspam appealed to the Fourth Circuit.

Unspam fared no better on appeal. In a published opinion, the Fourth Circuit affirms the district court’s dismissal of the banks on jurisdictional grounds:

Not one of the banks directed its business to Virginia or aimed its commercial efforts at customers in Virginia. Indeed, there is no evidence that any drug transactions involving the plaintiffs were connected by intermediaries to these banks. Moreover, even if we were to assume that Doe’s purchase was presented by some Internet “pharmacist” to one of the foreign banks for processing through the international Visa network, that transaction still would be too remote an act to justify jurisdiction in Virginia. The transaction would have occurred in the foreign country where the pharmacist presented the Visa charge to the bank, and thereafter, the bank would simply have collected the charge through the Visa network. The foreign bank’s relevant activity would thus be localized to the foreign country where it did business, and its only conduct “aimed” from that location would be the transmittal of the transaction into the Visa network. The fact that the transaction ultimately rippled through other countries for the collection of monies would not indicate that the bank purposefully availed itself of the laws of the countries where subsequent transactions occurred..

Plaintiffs also argued that they need not establish jurisdictional facts over the banks because the banks were part of a conspiracy and were subject to jurisdiction based on the acts of co-conspirators. Plaintiffs argued, relying on “blog research and internet searches” that “Canadian Pharmacy” was a trade name for two of the defendants and that Chronopay [described as “the PayPal of Russia”] provided transaction processing services to defendants, with the defendant banks acting as links in the chain. The court says this is mere speculation, and there is no evidence or allegation regarding the transaction(s) involving the doe plaintiff.

Finally, plaintiffs tried to rely on Rule 4(k), which provides personal jurisdiction based on federal claims where the defendant may not be subject to jurisdiction in a particular state, but has minimum contacts with the U.S. as a whole. The court says that defendants do not have sufficient contacts with the United States as a whole for plaintiffs to invoke Rule 4(k) as a basis of jurisdiction.

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As mentioned in my post on the district court ruling (Is SOPA’s “Follow the Money” Meme Infecting Anti-Spam Litigation? – Project Honey Pot v. Does), on the merits, plaintiffs’ claims were a serious stretch. It’s not surprising that the plaintiffs got zero sympathy from the Fourth Circuit on the jurisdictional issues.

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Eric’s Comments. The Fourth Circuit reached the logical result in this case. However, I view this lawsuit as a cautionary tale of how close we are to breaking the Internet.

The overzealous war against Internet pharmaceuticals has already taken a half-billion dollar toll on Google and another $40M toll on UPS (yes, the shipping company). In both cases, these intermediaries “agreed” (with the DOJ’s axe ready to swing if they didn’t acquiesce) to become the DOJ’s deputies and police their customers more aggressively. The result is that we now have key cogs in the wheel making legal determinations about the legitimacy of their customers’ activities, with zero due process or other oversight of any errors they make make against customers.

This problem only exacerbates as we continually expand the list of potential deputies who should be combating illicit activity online. There is no natural boundary for that witchhunt, and lots of defendants got tossed into the litigation mix and have to spend lots of money defending their conduct (even if legitimate). Worse, any vendor who might be deputized becomes adversarial to their customer base, with the inevitable waste of resources and chilled environment for innovation. For those of you who think that a narrow “follow the money” liability trail as an alternative to more draconian intermediary deputization, I encourage you to review this lawsuit and think carefully if this is the world you want. For more on this, see my six month retrospective of SOPA.

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Previous post:

Is SOPA’s “Follow the Money” Meme Infecting Anti-Spam Litigation? – Project Honey Pot v. Does

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