• CAN SPAM In Action
  • March 25, 2004 | Author: Theodore F. Claypoole
  • Law Firm: Womble Carlyle Sandridge & Rice - Charlotte Office
  • Are the new wave of anti-spam laws adequate to limit the growth of mailbox-jamming junk messages? The first volley of battle under these laws has been fired.

    Last week, four major internet providers -- America Online, Microsoft, Yahoo and Earthlink -- filed suit in the federal courts of their home states against several companies and individuals (and many unidentified parties) who allegedly send deceptive and unsolicited email messages. These lawsuits are the first major offensive under the new federal CAN-SPAM Act, that became effective January 1, 2004. (the name CAN-SPAM stands for "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003")

    The CAN-SPAM Act allows lawsuits by the government or Internet service providers (ISPs) to enforce the provisions of the Act, but does not provide for legal action by the end user recipients of unsolicited commercial email. Since the ISPs stand as the private enforcement arm of the Act, their success or failure in finding and stopping scofflaws will determine where the Act can successfully stem the growing tide of spam.

    Each of these ISP plaintiffs has sued alleged spammers in the past -- Microsoft has filed as many as 50 previous law suits -- but the federal law provides new tools and jurisdictional reach. Some companies send spam from overseas servers, the ISPs believe they can use the CAN-SPAM Act to bring the defendants under the jurisdiction of United States Courts.

    The alleged spammers targeted in these law suits including companies sending out advertisements for weight-loss pills, penile enlargement drugs, sexually-based web sites, mortgage offers, cable descramblers, university diplomas. The New York Times identified one of the defendants as "a former leader of a neo-Nazi organization who turned to selling penis enlargement pills.

    The ISPs claimed that the unsolicited email in question violated one or more of the requirements of the CAN-SPAM Act including no physical addresses in the email, no working opt-out provision for future messages and false "from" addresses, as well as containing deceptive advertising. According to public comments, the ISPs believe that they can use these actions to issue subpoenas and find more of the people and companies responsible for clogging their servers with deceptive and unwanted advertising.