Air America Auctioning Off User E-Mail Addresses – So Much For “Will Not Be Divulged To Any Third Party” (Update #2)

It’s been reported that since progressive radio network Air America filed for bankruptcy on January 25th, 2010, everything has been for sale in the companywide liquidation that’s followed. The auction began today at 11:00 EDT.

While there may be something poignant about that for fans of the network, there’s one thing on the auction block that’s likely to bother them more than the broadcast equipment and cubicles: Their e-mail mailing list, which auctioneers are billing at “intellectual property.”

This in spite of the fact that Air America’s privacy agreement said that newsletter e-mail addresses “[would] not be divulged to any third party” as recently as January 17th of this year.

From Maltz Auctions’ auction details for the sale:

Intellectual Property:

• Company Name: Air America Media, LLC
• Domain Name: AirAmerica.com
• Company Phone Numbers
• E-mail Mailing List (emphasis added)

Though the practice is frowned upon by consumers, there are companies out there whose entire business consists of buying and selling bulk e-mail addresses. But: according to WikiAnswers (which is admittedly not a legal textbook), the legality of selling a mailing list hinges on the terms of use contract that the customer signed before agreeing to join the list.

It depends on the contract (sometimes called the Terms of Use or End User License Agreement) that the customer signed and agreed to. If that agreement (which is a binding contract) says that the company can sell information given to them, it is perfectly legal. If the contract says that the company cannot sell customer information, then doing so would be a breach of contract.

Air America’s website is down, but their privacy policy is still gettable, thanks to a little something called “Google caching.” Two relevant passages from the privacy policy, which was cached on January 17th, 2010:

[1]e. The Air America site has a newsletter distributed via e-mail. If you choose to subscribe to this feature, you must provide a valid e-mail address. Your e-mail address will be used only by Air America for the distribution of the newsletter and any promotions or marketing that we feel may be of interest to you and will not be divulged to any third party, except as required by court order. All Air America newsletters include an unsubscribe link in at the very bottom. Clicking this link will unsubscribe you immediately.

…

4. What information does Air America share with third parties?

a. Unless described herein, Air America will not impart to third parties individual users’ e-mail addresses or other individual personal information unless required to do so by law.

The only stipulations described therein pertain to cookies on the website itself, sweepstakes, and court orders and warrants — nothing about their standard mailing list.

I’m no lawyer, but that doesn’t sound too good. Legal, not, or merely shady, pity the Air America e-mail subscribers — even the ones who read the fine print — who may be on their way to having their contact information sold to the highest bidder.

Update: Gawker has dug up a copy of the relevant part of the auction catalogue; click it to see their larger version.

(h/t Sam Seder’s Twitter)

Update #2: Verena von Pfetten, fearless leader of our sister site Styleite and former Entertainment/Lifestyle myrmidon at Air America, just received the following in an email:

hi…i was lucky enough to buy what appears to be the airbook that you had used at air america… would you kindly provide [the] password?  i would greatly appreciated it!

you may email or telephone me at my home phone no.

thanks very much!

So: The emails and documents of former employees are also, technically, up for auction! FUN.