Turnabout is Fair Play

What would compel someone to operate a company that profits from invading the privacy of others? I contacted Kevin Katz, fax.com's president, to air his company's side of the story for the record. The first time we touched base Kevin was on the road. He returned my call from his hotel room in St. Louis, where he was appearing as a witness on behalf of fax.com in yet another lawsuit ”an FCC-proposed $5.38 million fine against fax.com for faxing unsolicited advertisements. Katz was testifying before Missouri's Eighth Circuit Court, and he warily admitted that if the FCC won this one, it would be the largest fine ever imposed by the government for such a violation. By his own admission, Katz has spent as much time in court lately as in his offices overlooking the bay in Aliso Viejo, California. And with Kirsch's unprecedented lawsuit looming, the future of fax.com sometimes appears bleak. But Katz makes no bones about it; he believes the right to free speech as defined by the First Amendment of the Constitution will protect fax.com in these lawsuits.

Katz, who speaks with a cordial South African dialect , is obviously beleaguered by the considerable legal flak surrounding him and his enterprise ”which isn't to imply that he doesn't deserve it. Before talking to me, he wanted my assurance that I wasn't working for Steve Kirsch. I explained that I stumbled upon Kirsch's $2.2 trillion lawsuit while doing research for a book about privacy, and I wanted to include fax.com's side of the story. He then opened up. I found Katz to be charming, but also mercurial and hard to pin down. Take his company's Web site, for example (see the following figure).

The Fax.com Web Site

I thought I typed the wrong URL the first time I surfed over to fax.com. It appeared to be a child advocacy site for missing children; a network called the Internet Emergency Response Network that specializes in faxing Amber Alerts for missing kids .

Figure 5.5: Fax.com's missing-child home page

Figure 5.6: Fax.com's second missing-children page

I clicked on Enter Site and was directed to a second page containing eight more missing-children fax posters . The Web site was beginning to remind me of one of the fake building fa §ades on a Hollywood back lot.

I clicked Home on the second page and was finally directed to fax.com's Targeted Marketing Solutions page, which contains the nuts and bolts of fax.com's business. Its mission statement reads

Fax.com broadcast faxing allows you to send a high volume of fax information to hundreds, thousands, or even millions of recipients. You get high delivery rates, immediate reporting of successful and unsuccessful faxes, and unparalleled customer service.

The first question I asked Katz was what was up with his Web site. Was it a PR ploy? Or was he perhaps trying to qualify fax.com as a nonprofit organization to slip through some legal loophole? He emphatically insisted that this was not the case. Katz portrayed fax.com as a civic-minded organization that was instrumental in helping to locate nine missing children. That was the company line ”that faxes somehow serve the public good. Then Katz tried to put words in my mouth. "I'm sure you've received unsolicited fax material that you've benefited from," he insisted. I informed Katz that he was mistaken, and I told him my fax story to illustrate my point.

Figure 5.7: Fax. com's Targeted Marketing Solutions page

My Fax Story

A stack of junk faxes two feet high greeted me upon my return from an extended vacation. Ads for inkjet cartridges and toner, Wall Street penny stock newsletters, vacation timeshares ”the same type of crap Steve Kirsch was getting. And I did the same thing Kirsch did; dialed a bunch of fax removal numbers that were either disconnected or eternally busy. The junk faxes didn't stop either. I was getting one or two a day and growing increasingly frustrated. I confess ”I even called a few voice numbers listed on fax paper bought with my hard-earned money and cursed out the telemarketers on the other end. Nothing seemed to help. The junk faxes just kept coming!

When I first moved into my home 16 years ago, I had two land lines installed with phone numbers that were one digit apart. Over the years , the second land line has served as a combination private number, second incoming line, dedicated fax number, and dedicated line for a dial-up modem. But time marches on! My cell phone now serves as a private line, and I use a broadband cable modem for Internet access. Without my realizing it, my second land line had become obsolete. The only purpose the second line now served was to deliver these annoying junk faxes!

Necessity is the mother of invention. By pulling the plug on the second number I not only got even with the lowlifes who had the gall to spam me ” I knocked 32 percent off my monthly telecommunications budget! After relating my story to Kevin Katz I asked him some pointed questions.

1. Do you ever receive unsolicited faxes for products in which you have no interest?

2. How do people get on a "do not call" list?

3. Why are most "do not call" lists so ineffective ? Why hasn't fax.com developed a foolproof "do not call" list?

4. Aren't unsolicited faxes illegal under the 47 U.S.C. § 227(b)(1)(C) and U.S.C. § 552(a)(e)(3)?

5. What are your thoughts on Steve Kirsch's $2.2 trillion lawsuit against fax.com? What do you predict the disposition will be?

Before responding, Katz wanted to review the questions with his attorney. I agreed to e-mail him a Q&A. A month passed, and I placed a follow-up phone call. Katz called me back from his office, where he was on a speaker-phone with his attorney. I gathered from the lawyer's questions that he didn't want Kevin to cooperate. I left the door open , but that's the last I heard from him.

Figure 5.8: Fax.com's response to the lawsuit

Legal Update ” March 21, 2003

A federal appeals court ruled that a law restricting junk faxes was constitutional, setting a precedent that favors legal attempts to restrict unsolicited e-mail as well. The Eighth Circuit Court of Appeals reversed a lower court's ruling , concluding that a 1991 federal law banning unsolicited fax advertising did not violate the First Amendment's guarantee of freedom of expression. This is the case in which Katz was defending fax.com when he first phoned me from his hotel room in Missouri. By his own admission, this defeat was a crushing blow. One press report read, "Fax.com could not be reached for comment. A spokesman said the company shut down early on Friday because of the U.S. war against Iraq." The statement reminded me of fax.com's missing children Web pages. Katz can drape his company in red, white, and blue all he wants, but without the shield of the First Amendment to hide behind, fax.com is well on its way to becoming an endangered species. The wheels of justice grind slowly. By the time Steve Kirsch's lawsuit wends its way through the court system, fax.com could be out of business. If it isn't, I pity Kevin Katz. Steve Kirsch is one dude I wouldn't want to mess with!