I got tired of storing AT&T Wireless advertising for their benefit at my expense. So back in December of 2001, I decided to start invoking my terms of service, which read:

This is the home page for [myuserID]@[myISP.com], an email address held by a Washington State resident.

For the purposes of RCW 19.190, I do not authorize the use of [myISP.com] in [myuserID]@[myISP.com] for the purposes of unsolicited commercial email.

I rent a limited amount of server space at [myISP.com] under my account [myuserID]@[myISP.com] for my web files and email messages. The limited server space I rent for [myuserID]@[myISP.com] is intended for my use, not for the use by companies or individuals for their advertising in the form of Unsolicited Commercial Email. However, if companies or individuals store their UCE in my space, my terms of service are below.

TERMS OF SERVICE FOR STORING UNSOLICITED COMMERCIAL EMAIL (UCE)
Unsolicited commercial email (advertising) means an electronic mail message sent without my explicit invitation, direction, and permission that promotes real property, goods, or services for sale or for lease.

My fee for storing UCE in my account is $500 per message. Payment becomes due immediately upon initiation of the storage. This fee applies to all UCE:
-- whether or not the UCE specifies [myuserID]@[myISP.com] in the header, in the body, or both;
-- regardless of the length of time the UCE is stored in the space I rent from [myISP.com]

My receipt of your UCE in my [myuserID]@[myISP.com] account constitutes your affirmative acceptance of these terms. A breach of these terms will be controlled by Washington State law. Failure to pay storage fees will result in legal action, collection action, or both.

Payment should be sent to:
Bruce Miller
Box 31134
Seattle, WA 98103.

These terms are subject to change without notice.

--Bruce Miller, proprietor of [myuserID]@[myISP.com] and Washington State resident

Effective: 7 June 2001

Did this stop the AT&T Wireless spam? No. A few days later, on December 13, 2001, I got more spam promoting AT&T Wireless with American Cellular, Inc. (dba www.freefamilyphone.com and www.americellonline.com) as the contact. For this spam, I sent Matt Pruzan a demand for damages for violating Washington State law and an invoice for the storage fee. AT&T Wireless didn't pay. So on January 2, 2002, I filed a lawsuit against AT&T Wireless Services and American Cellular, Inc., one of their dealers involved in the spam.

After the lawsuit was filed Cynthia Hoppner, an AT&T Wireless attorney, wrote me a letter dated January 11, 2002 wanting me to remove AT&T Wireless from the lawsuit. She claimed that AT&T Wireless had a policy against UCE: "Please know that we specifically prohibit our dealers from marketing our product or service by unsolicted email".

Then, on February 8 2002, I received TWO MORE spam messages promoting AT&T Wireless. This time the contact was Sonix Systems, another of their dealers. For this spam message I wrote to AT&T Wireless' media relations manager and asked a few questions about AT&T Wireless policy regarding UCE. Here's what she sent back on February 15, 2002:

This e-mail was apparently sent to you by Sonix Systems, an authorized dealer of AT&T. We have contacted Sonix Systems on your behalf to have you removed from their list.

AT&T Wireless has a privacy policy that addresses how we use customer information on our web site at www.attwireless.com/privacy. In that policy, we reserve the right to contact our customers to inform them about new and changing products and services. However, we also provide an "opt out" feature for those customers who would prefer not to receive this type of information.

In prospecting for new customers, AT&T Wireless does at times use e-mail to reach potential customers. In addition, we do not restrict our dealers from prospecting via e-mail. However, we do require that like AT&T Wireless, our dealers comply with all federal and state laws regarding solicitation, and that there is an opt out mechanism available in all correspondence. Dealers are also required to comply with our privacy policy.

These policies are conveyed to our dealers as part of our agreement with them, and violation of these policies is grounds for termination of that relationship. We do not disclose the terms of our contracts with individual dealers publicly.

We have forwarded your complaint to our contacts at Sonix Systems, who have investigated and assured us that they are in compliance with the policies mentioned above.

If you continue to be concerned as to if and how your e-mail address was obtained/used or shared by Sonix Systems, you may want to contact them directly. AT&T Wireless does not sell, trade or distribute our customer information to third parties for solicitation or marketing purposes, and did not provide your contact information to Sonix.

Alexa Graf
National Media Relations Manager
AT&T Wireless
1150 Connecticut Avenue, NW
Washington, DC 20036
Phone: 202-416-6528
Wireless: 202-255-7080
Fax: 202-861-5807
E-mail: alexa.graf@attws.com

Let's take a close look at Graf's response.

AT&T Wireless has a privacy policy that addresses how we use customer information on our web site at www.attwireless.com/privacy. In that policy, we reserve the right to contact our customers to inform them about new and changing products and services. However, we also provide an "opt out" feature for those customers who would prefer not to receive this type of information.

Comment: I'm not a customer of AT&T Wireless (and after all this spam, very unlikely that I will ever be; I use a different cellular provider, and they don't spam me), so all this talk about customer information is irrelevant to the spam I received. And even if I was a customer, it is still irrelevant, because the spam was promoting AT&T Wireless services as though I was not a customer. It is also clear that AT&T Wireless operates under the opt-out policy.

In prospecting for new customers, AT&T Wireless does at times use e-mail to reach potential customers. In addition, we do not restrict our dealers from prospecting via e-mail. However, we do require that like AT&T Wireless, our dealers comply with all federal and state laws regarding solicitation, and that there is an opt out mechanism available in all correspondence. Dealers are also required to comply with our privacy policy.

Comment: This is a not-so-explict, but nonetheless clear, statement from the AT&T Wireless spokesperson that UCE promoting AT&T Wireless is permitted as long as it is 1) legal and 2) an opt-out mechanism is offered. As of March 20, 2002, the privacy policy cited by the media relations manager at www.attwireless.com/privacy does not forbid UCE to non-customers. This position contradicts their lawyer's statement that they don't allow UCE. Both paragraphs from the media relations manager discussed here have no regard to the recipient's policies.

The lawsuit against AT&T Wireless and American Cellular, Inc. became unnecessary and was withdrawn in court on March 19, 2002 to my satisfaction.