Spam Update

By Alan Gahtan - Sept 9, 2002

Unsolicited bulk e-mails messages, commonly referred to as “spam” have become a serious problem on the Internet. Spam messages are on the rise, soaring from 880,000 a year ago to 4.8 million in June 2002, according to Brightmail Inc., an anti-spam vendor in San Francisco .

Some estimates place the annual cost of unsolicited e-mail to businesses at between $8 and $10 billion. First there’s the productivity loss which is experienced by the end-user recipient. Then there’s the cost of wasted bandwidth that is paid for by Internet Service Providers and businesses. As well, occasional “spam floods” can overload servers and shut down e-mail services.

Although Canada has been slow to react, legislators in the United States have been working to address the problem. Over twenty states in the United States have enacted legislation governing unsolicited commercial e-mail, providing Internet users with a means of seeking protection. At least one state, Delaware , bans unsolicited e-mail entirely, though it has yet to bring any enforcement actions. The impact of anti-spam legislation is particularly evident in states such as California and Washington , where courts have upheld their constitutional validity and in certain circumstances, levied fines against spammers.

At the federal level, the US Congress is considering several anti-spam laws, including one that would permit fines of up to $500,000 for using a phony subject line or return address. Also, to date, the Federal Trade Commission in the U.S. has prosecuted approximately 30 cases involving spam, although only where the spam involved deceptive marketing practices.

California’s commitment towards the battle against spam is apparent by the recent request by the Attorney General’s Office to the general public for examples of spam e-mails being sent to consumers in violation of California law, particularly from persons operating in California. Specifically, the Attorney General’s Office is seeking examples directly from individuals who would be prepared to verify, in a written statement under oath, information about the spam they receive. The request specifies that the recipient of the spam must be a resident of California, the spam has to be delivered via servers located in California (sender’s, recipient’s or intermediary server will suffice), there must be some indication that the spammer is operating in California, such as a California telephone number or address for orders, and that the spam fails to comply with the statutory restrictions. It seems quite possible that some type of enforcement may be imminent.

In a seemingly unrelated development, the Washington Attorney General, Christine O. Gregoire, recently filed an enforcement action against two individuals alleging such individuals and their companies of being in violation of the state’s anti-spam law. The Washington Attorney General's office has made and continues to make various efforts to combat spam, including the development of a comprehensive program to educate the public regarding the kinds of unsolicited commercial e-mail that violate the law and what consumers can do to avoid it.

In addition to spam-specific legislation, the transmission of unsolicited e-mail may constitute a violation of other statutes. For example, last August Atlanta-based ISP EarthLink filed a claim against a Tennessee resident, Khan Smith, accusing him of violating federal and state Racketeering Influenced and Corrupt statutes, the federal Computer Fraud and Abuse Act of 1984, the federal Electronic Communications Privacy Act of 1986 and other states laws. EarthLink moved for summary judgment in a federal court, and the judge ruled in its favour (to the tune of $24.8 million) after Smith failed to show up for the hearing or contest the claim.

While anti-spam activists are using anti-spam laws in order to seek redress against spammers, there are indications that some spammers are fighting back. Joel Hodgell, a Seattle man that has been actively pursuing spammers in King County District Court sued Daniel Amato, a Florida-based spammer who is well known to anti-spam activists. Amato’s business and his father. Hodgell claimed that the computer messages generated by Amato violated Washington’s anti-spam law. On July 22, 2002, District Court Judge Eileen Kato imposed a $6,925 judgment against Hodgell to compensate the attorney representing the spammers. However, it is not clear as to what ground the District Court Judge relied on in dismissing Hodgell’s complaint or in ordering costs against Hodgell.

As the battle against spam continues on, it will be interesting to observe further developments in the United States and whether or not Canada will follow its lead.

This article was prepared with the assistance of Dana M. Hirsh, an Associate with Mann & Gahtan LLP.

© 2005 Alan M. Gahtan. All Rights Reserved | Use is subject to these Legal Terms
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