Traffic Power Lawsuit, Blogging, and the SMA-NA

A lot of people have been wondering about the recent lawsuit against Aaron Wall (seobook) and others by a company called Traffic Power (aka TP, First Place, 1P, etc).

Although I can't answer all the questions, I do have a few thoughts to share. I recently activated comments on my blog (see previous post) and have been doing some thinking as to whether it's a good idea or not, which got me thinking about Aaron's blog and Traffic Power.

The Background:

Traffic Power is an SEO firm based on Las Vegas, Nevada that is pretty infamous in SEO circles. In addition to cold calling and high pressure telemarketing, which annoys people on principle (it's basically "phone spam") they have been shown to practice techniques both directly on their unsuspecting clients websites and also on associated websites intended to funnel traffic and link weight to their clients websites that are considered "high risk" techniques - aka "black hat" or search engine spam.

You'd think that wouldn't be an issue, since many SEO's use similar techniques, and have for years. The problem is, there is currently only one real cardinal sin in the SEO world - getting an uninformed client banned from the search engine you were trying to increase their rankings for.

It's generally considered professional negligence. Kind of like killing your patient or designing a building that collapses under it's own weight. Everyone with even a limited knowledge of SEO knows that doing certain things can/will get you banned or penalized. It's not just expert-level knowledge, it's general knowledge.

Now, sometimes people will deliberately use tactics that are risky and likely to result in a penalty or a ban on websites that they don't care about ("throwaway domains") in exchange for the short term gains that can be made. In these cases, however, the client is fully informed of the risks and the tactics are not practiced on the "real" domain. You basically create sites that are cannon fodder and protect the main site. Even the most notorious SEO spammers are careful about this - you never, ever put your client's flagship site at risk without full client knowledge and consent, particularly if you hold yourself out as a professional SEO offering your services to the public.

Further, you don't spam unless you feel it's absolutely necessary, as opposed to defaulting to it as a matter of course, regardless of the actual competitiveness of the site. Most of us (like me) don't spam at all. Ever.

To make a long story short, apparently Traffic Power acquired a whole bunch of clients by cold calling people with very little clue about SEO, then proceeded to get a whole bunch of them banned from Google due to various known high risk techniques, whether the site "needed" them or not. Google was able to detect this around June 2004 and removed the offending sites from it's database (banned them) en masse.

Naturally, this caused some concern by the people involved. Complaints to TP resulted in emails in return saying everything from "it was a glitch in Googles index" to a much more enlightening quote by a TP business developer (Powers) who was quoted saying to a client that the client failed to understand that getting banned by Google is part of the business. Powers said Google's bylaws are in a constant state of flux because companies like Traffic Power figure out ways to beat them at their own game. Besides, he said Google can't dictate how he operates:

"Google can kiss my ass," Powers said. "This is the wild wild west. As they [Google] get hip to a trick, they change their rule. Google cannot control my business."

While TP was claiming that Google didn't control their business, many of TP's clients were complaining of TP controlling theirs - by getting them banned. TP has the unique distinction of being one of the most complained about companies in the Las Vegas BBB. Currently, the BBB reports that they cannot verify that that TP has a valid business license, and further states that:

This company has failed to eliminate the underlying cause of consumer dissatisfaction.

... then links to Googles webmaster guidelines.

In short, they have a poor reputation with both the SEO community and the Better Business Bureau. Do a quick search on any major search engine for their name and you will see what I mean.

Recently, they have apparently begun to address this by threatening to sue people. I'm not certain how (or if) that is intended to improve their reputation, but I'm also not too sure about their ability to think clearly in the first place, so I can't really comment on it's effectiveness at this time. I do know that some people have removed materials under threats of a lawsuit by TP, so I suppose it works in at least some cases.

In July of this year (2005), Aaron Wall was served with a notice that he was being sued by Traffic Power. He contacted several people, including myself, to get some opinions and thoughts as to what to do next. That's when I got involved.

The Current Situation

I like Aaron personally. And freely admit to holding the same opinion of TP as the rest of the SEO industry. I was more than happy to help him out on a personal basis, but this is a bigger issue. See, Aaron was being sued primarily because of comments made on his blog by other people!

This is a big problem for the SEO community and the blogger community as a whole. See, a blog consists of 2 parts - the "article" part and the "comments" part. Up until recently, I only had the "articles" part of this blog activated, mainly because I hate blog spam and travel a lot, so I was not comfortable letting people post comments on my site without my knowledge and control.

However, the fun (and, some say, purpose) of a blog is to allow people to comment on what you've written. It helps explore issues, provides an opportunity to build a community, and many other, generally positive things. That's why the commenting part of blog software exists and why it's considered different than just a website or a CMS (Content Management System), though you can make it do those things in a pinch.

Every blogger has their own rules for comments. Some don't allow them, some allow a free for all. That's not the norm, though. By not allowing comments, you are missing the point of a blog, and by allowing a free-for-all, you are diluting it's value. Most bloggers are rugged individualists, opinion-wise, and generally excercise very little editorial control over the blog - basically, if it's on topic (Or at least not spam or abusive) at first glance, you let it go without looking at it too closely. Many comments sections in blogs have entire conversations in them that are barely on topic.

In general, the existence of a particular comment in a blog does not mean that the owner exercised editorial control over it being there, it means that it's there because an (often) anonomous person posted it, and there was no pressing and apparent need to remove it for being off-topic. Usually, if you disagree with something someone says in your blog you post a response in your own comments section, rather than remove it or edit it.

In short, the blogger usually acts as a "carrier" rather than a "publisher" or "editor" of blog comments. The normal assumption is that people are responsible for their own comments, not the owner.

The TP suit goes against this idea and basically attempts to treat blogs as newspapers that edit and exercise control over their writers and content. Anyone who has been a victim of blog spam knows that's nonsense.

It would be very bad, IMO, if that interpretation took hold in law. It would be like being at a party, making a comment, then being sued, not for your comment, but for the comments of people in response!

On this basis, I felt it was a key issue, and a serious one affecting the internet as a whole. As such, I discussed it with the other paid members of the SMA-NA at the time and decided it would be best to see what we could do about this on behalf of the SEO and Blogger industry.

It helps that I have a background in law. That's not to say I'm a lawyer (I went into the private sector directly after law school) but I can speak the language and understand the basic principles.

Since the lawsuit was based in Nevada, I talked to Aaron and got his approval to help out on behalf of the SMA-NA. Then I went to one of the best law firms (IMO) in the state - Jones Vargas, whom I've worked with before, and contacted Ariel Stern, an all-around nice guy. Unlike TP's lawyer, who apparently specializes in bankruptcy law, Ariel is an actual litigator.

I told Ariel I was contacting him behalf of the SMA-NA for the purposes of helping Aaron, and educated him on the issues and why we felt that this was a bigger issue than just one blogger. Ariel agreed and accepted a retainer that was about half of the normal estimate under the circumstances. Combined with the people who have been generously donating to Aarons cause, I felt this was a good development.

Next, I contacted Aaron and put the two in touch with each other. Aaron has now retained JV and they have already managed to move the case from state level to federal level, which is a much better position to be in. Naturally, JV's primary duty and goal is to serve the best interests of their client, but is well aware of the bigger picture for bloggers (I pound it home every time I talk to them) and will no doubt keep that in mind while organizing the defense.

The Future

This past week, by coincidence, I was in Las Vegas to give a couple of seminars to a bunch of law firms about SEO for FindLaw, which went well.

As a matter of fact, it went so well that I was able to accomplish two other goals for the SMA-NA (and Aaron).

First, my fellow speaker was the renowned lawyer/blogger Dennis Kennedy, which was a happy coincidence I could hardly allow to pass by :)

When Ariel phoned me later that day (we were going to meet up, but some sudden work got in the way) and started asking me some details about blogs, I realized that I just had an expert on legal issues and blogs sitting next to me!. I've put the two in touch, which will hopefully be helpful. Dennis knows almost all the lawyers who have blogs and is very well known, and I imagine they may have something to say about TP claiming they are liable for comments, etc. ;)

This should be fun. I like fireworks...

The second thing I accomplished was that it was pretty clear that SEO's and bloggers sometimes need legal help (I get questions all the time, for example). So I talked to the fine folks at FindLaw and we are in the process of working out the details on providing methods of connecting experienced internet lawyers to SMA-NA members, in addition to providing other legal resources, advice and benefits.

Once we work out the exact details, I'll use that as a template to approach lawyers in Canada and Mexico so that any SMA-NA member anywhere in North America (or any SMA member worldwide who needs legal help from within North America) will be able get it.


1 comment:

Brokerblogger said...


I agree with you that a blogger is a "carrier" vs. an "editor" of comments his blog, and I explain why in my latest post.

Congratulations on your ethical stance on this. It is too bad that the entire search marketing industry (not just the SMA-NA) isn't behind you and Aaron on this.

Keep Up the Good Work,
Bill Kelm