Back in June, I heard from Aaron Wall of the SEO Book blog. He'd been served with a cease-and-desist letter from SEO company Traffic-Power.com that seemed impossible to comply with. At issue was a claim that Wall had published "proprietary and confidential information." However, the claim didn't list any specific infringing material that Wall was supposed to remove. Now things have progressed to an actual lawsuit over the matter, one that I can't help thinking will get dismissed due to a lack of evidence.
The Cease-And-Desist Letter
Let's start with the actual letter. The Max D Spilka & Traffic Power Cease and Desist Letter post at Wall's blog at the end of July reprints the letter he was sent. It's not long, but I'll highlight the key parts in bullet point format:
- It has come to our attention that on a website you control, namely www.SEO Book..com, proprietary and confidential information related to Traffic Power's business has been
- The published information violates the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521, and is subject to certain contracts between Traffic-Power and
its former and/or current employees.
- The published information has been pirated from Traffic Power and you have obtained the information illegally, all of which you knew or should have known.
- You are to cease and desist immediately from the same or any similar activity. In the event you fail to do so, Traffic Power is prepared to initiate litigation to obtain
an injunction to enforce its rights.
- Finally, consistant with recent court rulings you may now be obligated to disclose the source(s) of your information. Accordingly, within ten (10) days of this letter, you
are to do the following:
- 1. Provide a list of the sources of your information complete with name, address, and telephone number; and,
- 2. Remove from www.SEO Book.com website all information relating to Traffic-Power.
- 1. Provide a list of the sources of your information complete with name, address, and telephone number; and,
Lack Of Specifics
As said, I found this letter almost impossible to comply with. What's the confidential information? Where was it published? Which sources are alleged to be involved?
I contacted Traffic Power to learn more about what Wall was supposed to do in response to the letter. Below are questions I sent, along with the emailed responses from Traffic Power's public relations firm AMR Partners that I received at the end of June. I've made light edits to clean up some spellings and grammatical errors in both the questions sent and answers received, produced by the informal nature of email:
Question: The letter never actually says what it is he supposedly pirated or published. What exactly is it that's in contention here?
Traffic Power tells me that in threads regarding Traffic-Power portions of private and confidential emails have been presented as well as links to proprietary company information as well as false claims against the company regard non-existing lawsuits and other potentially libelous claims.
"I just thought anyone should know, This is an interesting link to a law firm that is getting ready to file a class action against Traffic-Power.com http://www.girardgibbs.com/traffic-power.html"
Many of these links are no longer available and Mr. Wall's site - Blocked Wayback Machine with "Robots.txt Query Exclusion" (See robots.txt file at http://www.seobook.com/robots.txt) http://web.archive.org/web/*/http://www.seobook.com/archives/000314.shtml
Question: Isn't a violation of the act [cited in the cease and desist] a criminal violation?
That would be a better question for Traffic Power's attorney, Mr. Spilka.
Question: The letter suggests Traffic-Power might be entitled to damages under the act. Isn't it really that he'd be fined by the federal government?
I believe the letter is suggesting that Traffic Power will pursue all legal remedies both criminal and civil to resolve this matter.
Question: Can you be more specific of what exactly he's done to violate the act, which seems to be mostly related to federal wiretapping provisions?
Again I feel that would be a better question for Traffic Powers Attorney, Mr. Spilka.
Question: How is he supposed to comply with a demand for source disclosure when you haven't cited what was allegedly published or pirated? Are you expecting a list of every person he's ever talked with?
I have no idea what the legal team might expect in terms of disclosure of sources, but I have been told that any evidence will not be presented until it has been decided whether or not they need to file a lawsuit.
Question: Are you suggesting everything on the SEO Book web site that might mention Traffic-Power is somehow pirated material? Doing a quick search, I see http://www.seobook.com/archives/000314.shtml, where he talks about being called by Traffic-Power. Is this the pirated communication? And if so, was he informed of this before the phone call began?
I do not think the intent of the letter is to imply that everything on the site is pirated or in response to the two links you've posted, but rather to suggest that pirated material as well as material that could be considered libelous are present and that there are several issues on Mr. Wall's sites that are potentially actionable.
In conclusion, Traffic Power has assured me that they would much prefer a civil dialog with their critics instead of any legal action and that they at least, would be open to discussion.
I'm afraid the responses left me not much clearer about the situation. The cease-and-desist letter talked about Wall allegedly publishing confidential information, yet the follow-up answers went broader to suggest there was potentially libelous information at issue, as well.
Certainly Wall didn't know what he should do. As he wrote on his blog:
The only way I could have complied with it is if I shut my site down and gave them contact information of everyone I have ever contacted. Since it was impossible to comply without destroying my business model and potentially getting my friends and customers spammed or cold called I asked a friend about the situation.
The Cold Call Post
It seems the key trigger in all of this was Wall's Traffic Power & Cold Call SEO post of May 6, 2004. That's the http://www.seobook.com/archives/000314.shtml URL mentioned in the follow-up response I received (though not in the actual letter sent to Wall). That's Wall's best guess as well, as he's emailed me and as he speculates in a timeline-of-sorts in this post on August 26 about being sued.
In the post, he talks about being cold called by someone from Traffic-Power and coming away unimpressed. I didn't see anything proprietary when I looked at the post. Libelous? That wasn't an issue in the letter he was sent. Trade secrets? Again, nothing I see any the post anything remotely approaching what I'd view as trade secrets.
There's more than the post, of course. There are comments below it. Some in our forum thread on the lawsuit wonder if perhaps some of the things people have posted might have been deemed trade secrets, such as:
- Alleged use of doorway pages
- Apparently hosting keyword-targeted pages on other web sites, maintaining ultimate control of the traffic
If these are trade secrets, none of them would be considered proprietary or unique to Traffic-Power, to my knowledge. Moreover, if these are things that have been discussed with clients and potential clients -- without requiring the use of non-disclosure statements -- then they hardly seem secrets worthy of legal protection.
By the way, how about that law mentioned as part of the letter? The EFF gives a layman's view here and FindLaw has info on various sections here. I came away thinking it was made certain wiretapping like activities a criminal action that the US government could pursue, not something to be tried in civil court.
The Lawsuit Against SEO Book
As said, I started looking into this back in June. My understanding was that the issue had gone away. Wall posted the letter he received on his blog, and that seemed to be the end of it.
Obviously, it is not. Notice! You Have Been Sued is a follow-up post on Wall's blog that contains the lawsuit. You can read through it there. It reasserts that Wall has somehow helped reveal trade secrets while not explaining where, when or how. It further alleges that Wall's published "false and defamatory" information about Traffic-Power, though again not naming or explaining what this is. Perhaps there were exhibits as part of the filing, but if so, these aren't referenced as is typical in a complaint.
Wall says that he's been told verbally that if he drops all content about Traffic Power on his web site -- regardless of whether it is legitimate -- the suit would be dropped. He's now seeking a written confirmation of this, while weighing up the pros of fighting the case versus the cons, all of which are itemized on the site. Ultimately, he says he's leaning toward pulling the material.
A Chilling Effect -- But Not For Everyone
If so, I find it unfortunate. In fact, I find the entire lawsuit unfortunate. Whatever reputation improvement Traffic-Power thought it might be gaining through such an action has just gotten worse. Small sites may react to the chilling effect of being sued. Larger publishers won't -- and many more of them just learned about Traffic-Power and the many allegations levied against them over the past year, as a result of the action.
One big publisher, by the way, is Google. As Marcia over in our forum thread on the lawsuit pointed out, there's a Google Answers question that talks about Traffic-Power "doorway pages," describes hidden links as "cloaking" and has a conclusion that "questionable SEO tactics are being employed on your website." If anything, that response on a web site hosted by Google, from a freelance question answerer paid through Google, is far more damaging than what I've seen referenced on the SEO Book blog.
In fact, maybe even other smaller sites will stick with it. Wall points over to the Traffic Power Sucks site, a protest site against the firm that talks about how to gain refunds, a possible class action lawsuit and advice from the site's perspective of things to watch out for. It sounds like the site received a letter similar to what Wall got:
I received a little letter from the same lawyer threatening me with a lawsuit if I didn't take "proprietary and confidential information related to Traffic Power's business" off of my website. I called the lawyer and asked him exactly what information he was referring to. He had no idea what I was talking about. This was the guy who signed the letter, and he was clueless. If anyone can find anything at all on this website that could possibly be considered Traffic Power's "proprietary and confidential information", drop me an email at email@example.com.
I take it Traffic Power Sucks has no plans to remove material and if ultimately sued, I suspect it will press onward since it seems to be organizing its own lawsuit against the firm.
Want to discuss? Visit the Traffic Power Files Suit Against SEO Book thread in our Search Engine Watch Forums.Postscript from Gary: I did a bit of searching and on August 11th, the same day a lawsuit was filed against Aaron Wall/SEO Book, another suit was filed in a Neveda District Court listing TrafficPowerSucks.com (and those who run the site) as defendents.
Postscript 2: The Wall Street Journal now has a story with some legal comments: Blogger Faces Lawsuit Over Comments Posted by Readers.