Chapter 5: Tactical and Practical Digital Defense (Part 1)

Overview

The $2.2 Trillion Fax

Steve Kirsch is a living legend in Silicon Valley. As the founder of three high-tech companies with a combined market cap of more than $5 billion, Kirsch's biggest business coup was selling Infoseek, his Internet search portal, to the Walt Disney Company in November, 1999 ” at the height of the dot-com bubble. Although Kirsch is a millionaire many times over, he's perhaps best known for being an activist and philanthropist. He and his wife, Michelle, have donated more than $5 million to educational causes through the Kirsch Foundation, established in 1999. Kirsch was ranked number 8 on Slate's 60 largest American charitable contributions of 1999, and he was named one of the top 10 entrepreneurs of 2000 by Red Herring magazine. Even with all these accomplishments under his belt, Steve Kirsch may go down in history for what he did in the summer of 2002, when he filed one of the largest civil suits in American jurisprudence ” an unprecedented $2.2 trillion class action suit.

Figure 5.1: Steve Kirsch Web site

Figure 5.2: http ”//www.junkfax.org/fax/stories/kirsch.html

Here's Kirsch's story in his own words, edited for the sake of brevity. The full account appears on his Web site, at http://www.junkfax.org.

HOW I DISCOVERED FAX.COM

By Steve Kirsch

Chronology

11/16/01 9:37 a.m.

I received an unsolicited offer via facsimile at my company headquarters to repair my credit, guaranteeing $7,500 in new credit from Bagoba Credit Offer in Chicago for only $49. The offer was transmitted to my main voice number (which rolls over to my fax number if I'm not there and the voicemail system detects a fax tone). The top of the fax indicated it was sent from 1-800-457-5410, a number I later determined (both through a USENET search and by calling it myself ) belongs to fax.com, the most notorious offender of the Telecommunications Consumer Protection Act of 1991 (TCPA).

11/16/01 10:04 a.m.

Received the identical offer again. This time, it was sent to the main voice number of my personal assistant.

12/28/01 10:12 a.m.

I received substantially the same offer as a month ago, although this time the price was raised to $99, and the name of the company was changed to Tower Group . The location of the company was changed to Dallas, TX, but it included the same free DSS offer, the same $7,500 guarantee, and the same reference to the Millennium Credit Program. This is obviously a scam to sell a worthless program, which explains why the company keeps changing its name and location. As before, there was no contact information to allow you to talk to a live human or ascertain the identity of the sender.

12/28/01 10:34 a.m.

I received the same offer as 30 minutes ago, although this time it was to my assistant's voicemail number.

1/5/02 2:00 p.m.

I decided to take a closer look at the other faxes and look up who each 800 number belonged to. I did a Google groups search and found the revealing posting shown in the following figure. Things were starting to make sense to me.

I later determined that there were a variety of 800 numbers for removal printed on the fax, but that five of them were all owned by the same company: fax.com. Twenty-two faxes and five different removal numbers over the past four months, just to me! What's even more irritating is that there is absolutely no way for most normal people to figure out who sent the fax or who owns the 800 number because phone companies do not disclose this information for privacy reasons, and if you dial the fax.com removal number, they do not identify the company. There is also no station ID used by the sender's fax machine. However, by using my investigative tools, I was able to confirm that all the 800 numbers listed on these faxes did, in fact, point to the same place, namely, fax.com. I've discovered only 10 popular fax.com removal numbers, but they have 23 toll-free numbers, so this is only one-third of the numbers they use.

Figure 5.3: Google Fax. com post

Fax Removal Numbers

If you ever get a fax with one of these removal numbers, it means you've probably been spammed by fax.com.

• 800-443-7620 (now disconnected)

• 800-443-7628

• 800-457-5410 (also used as a "from" number on some faxes)

• 800-663-8758

• 800-766-0816

• 800-785-6698

• 800-822-9033

• 800-965-7235

• 800-976-3734

• 800-992-5329

I spent time looking up the business address of each fax with a fax.com removal number. Doing a bit of detective work on the Internet, I was able to get contact information for virtually all of the companies that used fax.com to send me unsolicited faxes that I saved. I then compiled profiles of all these companies, including their contact information and judgments against them, on a single Web page for easy Internet identification.

Figure 5.4: Junkfax.org ”fax company profiles

1/11/02 10:00 a.m.

I got the Tower Group offer again. Two copies! Traced these calls to Robert B. He must be the local agent for fax.com (fax.com has various satellite locations doing dialing for them).

5/12/02 and 5/13/02

My company was war- dialed from San Jose: 408-937-6725, 408-937-6771, 408-937-6459. Everyone at work was left a fax tone on their voicemail. For more details on this war-dialer location, see fax.com.

Junk Fax Evidence

• Tower Group/Bagoba Credit: Four faxes to repair my credit

• Misc: 22 faxes sent to me from fax.com (from 11 clients )

• y2marketing: Three faxes sent within one hour to me on 1/6/02

• 21st Century (the 900 yes/no poll question)

• 21st Century: Three faxes

• Market News Alert

• Market News Alert: Eight faxes

• Wall Street Watch (10/23/01)

• Copiers Direct (no header at all; sent in q4 2001)

• Quality Reprographics (8/30/01)

• Central Imaging (1/7/02)

Fax.com Violations

• They sent unsolicited faxes.

• They didn't remove me when I asked. Even after I received e-mail from them confirming that I was removed, I got three faxes a few days later! I don't think they remove anyone . They just used a different 800 removal number to make it look like I popped up on a new list. However, this means by not removing people, they are racking up their "unsolicited" points.

• Their fax headers don't comply with the law because they don't identify the name and phone number of the sender (i.e., their client) in the top or bottom margin.

• I can't do anything about this, but under 47 U.S.C. § 227(f)(1) the California State Attorney General can sue fax.com for both technical violations and unsolicited faxes, enjoin them from making any more calls into California, and also get treble damages as well.

These Faxes Were Unsolicited

1. I never give out my main voice number to use as a fax.

2. My assistant never gives out her voice number to use as a fax.

3. No one in our household has any need for credit repair.

4. No one has a prior business relationship with either Bagoba or Tower Group.

In fact, there is no known way to speak with these businesses even if you want to establish a relationship. I've never had a credit problem, and the offer transmitted to me indicates a complete lack of any knowledge about me. Anyone with only a passing knowledge of our household knows that we would never be interested in such an offer.

We'd never give out our voice numbers to be used by fax machines because these numbers are all normally answered by humans (except at night or when we are out of the house, when an answering machine comes on, but it can automatically transfer fax calls to our fax machine). It would be quite obnoxious to answer the phone and hear a fax tone. That is why we have and always use a dedicated fax number ”a fax number which apparently never made it into the fax.com database.

Nor would we ever intentionally enter our voice numbers into the fax.com database. Indeed, fax.com seems to have all our voice numbers, but not our dedicated fax number.

Therefore, the only way for fax.com to have gotten those phone numbers is by using a computerized dialer known as a "war dialer" (since any human dialer would have recognized that these were normally voice lines). They have been known to do this, and were in fact cited for exactly this offense by Washington State.

How is it possible that virtually all the unsolicited faxes I get are from fax.com? That 11 different companies have faxed me and they all use fax.com? That I've never heard of these companies before? That some of them didn't even exist a few months ago? That all of them are faxing to my voice numbers instead of my fax number?

And why does fax.com have at least 23 different removal numbers? Why not just one, if they have nothing to hide? And why does the removal number change when the client sends a new fax? For example, the Wall Street Examiner sent me a fax with an 800-443-7628 removal number, but the removal number listed on the fax that Junkfax.org received just 60 days earlier is 800-766-0816. Both numbers still work.

And why don't fax.com machines identify themselves (SenderID field during the handshake)? Why doesn't fax.com identify itself anywhere on the fax or at any place when you call the removal number?

The fax.com Web site blatantly brags about their database: "fax.com has identified over 30 million untouched fax numbers." They offer to send faxes to their database or yours. It's blatantly illegal to make such an offer. See excerpts from their Web site for more on this illegal practice. Finally, they have been cited in Usenet postings as being the most notorious abuser of the TCPA.

Why I'm Bringing Suit

I have one goal and one goal only. I want this practice stopped . I'm tired of the fax calls waking us up. I'm tired of saying "hello" to a fax tone. I'm doing this for me and for everyone else. Clearly, despite six separate citations by the FCC in the past 12 months (they've been cited more than any other company, at an average rate of one citation a month in the first half of 2001) and a settlement agreement with Washington State, fax.com continues to send facsimiles to numbers belonging to those individuals who have no previous business relationship with their client. I want this practice to end. Not just for fax.com, but for everyone engaging in this practice. And I'm willing to (and can afford to) spend whatever it takes to make sure this happens. I want the law enforced.

I have no monetary motivation to bring this suit. In fact, I'll probably lose money because any settlement will likely go to a charitable foundation to

• Fund the legal pursuit of other offenders.

• Educate the public on how to pursue offenders.

From a legal viewpoint, our case is completely airtight (even though there are judges here and there who misinterpret the law). There is no escape. Every possible defense has been tried and failed. (It's just a matter of time before a California court sees through the current "opt out" defense.) That is why Hooters was slapped with a $12 million damage award, and why the Dallas Cowboys recently settled. I've detailed all the possible legal defenses, and I explain why they will fail.

So fax.com will lose. They will be put out of business permanently. Plus, all their clients will be forced to pay up to the maximum restitution as provided by law and/or declare bankruptcy. If this doesn't dry up the supply and demand for this illegal practice, I will continue to file lawsuits against these companies and their clients until it does. Hopefully, this $2.2 trillion class action lawsuit alone will get people's attention, and the practice will stop. I have no interest in spending my time filing lawsuits, but if that's what it takes, so be it. The first judgment we win will fund future lawsuits so that the junk faxers will be financing their own demise.

Why $2.2 Trillion?

The reason for the $2.2 trillion is that fax.com sends out three to four million faxes a day. They've been in business at least three years ; do the math. It's more than $500 billion per year. My guess is that the actual statutory remedy is many times that amount. In my case, I receive about one fax every two days from fax.com at my home. In short, fax.com sends out 1,000 linear feet of faxes per day. That's further than most of us can hit a golf ball. It's 6,000 reams of paper or $60,000 per day in paper expenses for the recipients. We estimate that when you add up everything, it's over $100 million in expenses that are pushed off to the recipients (about 10 cents per page).

Wish me luck!

Steve Kirsch

On August 23, 2002, a coalition of California activists led by Steve Kirsch filed a jaw-dropping $2.2 trillion set of lawsuits against fax.com, its advertisers, and Cox Business Services (its telecommunications provider). The multiple suits, filed in both California state and federal courts, seek class action status and punitive damages. Kirsch claimed, "The right to free speech stops at my front door. You are not allowed to invade my privacy and use my resources to send me your messages! Millions of junk faxes are clogging the nation's fax machines, jamming communications, and possibly endangering lives."