SPAM: Are Legal Solutions Within Sight?

By

David L. Baumer[1]

I.  Volume of SPAM threatens the utility of email, because people are inundated by SPAM.

a.  SPAM is the sending of unsolicited commercial emails (UCEs), in large numbers and repeatedly to individuals with whom the sender has had no previous contact.

b.  Estimated costs of spam are in the billions.

1.  Out-of-pocket expenses as well as the costs associated with lost time, annoyance, and exposure to seamier side of life.

2.  SPAM is also associated with fraud and viruses

c.  Private efforts to combat SPAM have not been successful

1.  There are some success stories, but volume of spam continues to increase.

2.  Private efforts include technological methods such as filtering software, vigilantism, use of negative publicity in the form of publicizing lists of spammers and their enablers.

a.  Clearly the volume of SPAM has overwhelmed efforts based on vigilantism and negative publicity.

b.  Filtering software does work, but there is a fear that desired email will also be screened.

II.  Private lawsuits have been used to combat SPAM with mixed success

a.  Most of these lawsuits are filed by ISPs and are based on attempts to by ISPs to enforce terms of service agreements that they have with their subscribers that typically forbid spamming.

b.  Other suits have been filed against spammers based on trademark infringement or false designation of origin.

c.  ISPs have been successful in obtaining injunctions against some spammers but there have been difficulties:

1.  It has been difficult to locate spammers

2.  Spammers have been able to insulate themselves from liability by subcontracting out the actual spamming to third parties, who are independent contractors.

3.  Some state statutes have altered the common rule of liability and made advertisers liable for the actions of independent contractors who do the actual spamming.

4.  Recognizing the stakes associated with losing email accounts because of spamming, both AOL and MicroSoft have recently filed claims against the 20 or so largest spammers.

III.  Proposed Legislation

a.  CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing Act, S. 877) has been introduced into the 108th Congress

b.  If CAN-SPAM were enacted into law, sending a UCE with a false heading or origination information would be illegal. Also spammers would be required to have a physical postal address listed in the email.

1.  CAN-SPAM is essentially an opt-out system.

2.  The sending of a UCE after the recipient has opted out would be considered an unfair and deceptive trade practice that could be enforced by:

a.  State attorney generals or the FTC.

b.  A violation of CAN-SPAM is equal to the greater of actual damages or statutory damages of $10 per violation.

3.  CAN-SPAM also creates a private right of action against spammers for ISPs who can show that they have terms of service agreements that prohibit spamming.

c.  COBill (Computer Owner’s Bill of Rights, S. 563) has also been introduced in the 108th Congress and it would follow the national do not call model: every computer owner not wanting to receive spam could register with the FTC.

1.  After registering, it would be illegal to send UCEs to that web site.

2.  The statute has daily damages of $10,000 per day

d.  Over 30 states have enacted anti-spam laws. Among the acts prohibited are: false designation of subject or origin, requirements to use ADV to indicate that the email is advertising or porn, and opt-outs with penalties for non-compliance.

IV.  The EU has been ahead of the U.S. in enacting in 2002, the EU Privacy and Electronic Communications Directive (2002/58/EC).

a.  Directive 2002/58/EU is opt-in legislation—the sending of a UCE is illegal, but there are exceptions:

1.  If the sender has had any previous contact with the recipient.

2.  The opt-in requirement only applies to consumers; for businesses sending of UCEs is subject to an opt-out.

V.  Other spam-related issues:

a.  Are spammers in the same legal position vis a vis ISPs as aggregators who use up lots of bandwidth are to auction web sites? I think the answer is yes.

b.  Is mousetrapping (obstructing computer operators’ desire to leave the web site) an unfair and deceptive trade practice—yes, see recent FTC action.

c.  Are screen scrapers (software tools that collect information on screen displays of other businesses) a violation of the Computer Fraud and Abuse Act (CFAA)? Maybe?

[1] Associate Professor, presented to the Technology Law Section of the 2003 American Legal Scholars in Business Annual Conference in Nashville.