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Ed Normand
Ed Normand
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We all know what Spam is: a canned meat popular in Hawaii. We also know what spam is: useless electronic marketing messages that waste our time and money.

Some canned meat is good, much is not. Likewise, some commercial messages are good and helpful, trillions are not. Congress passed a law against email spam that does not work. Congress passed a law against text spam that is much better.

To combat email spam Congress passed the CAN-SPAM Act. This is a Federal law that provides a sort of rule book for commercial email spammers but does not ban. To avoid throwing out the baby with the bathwater, Congress passed CAN-SPAM to regulate the bad meat emails but still allow what they thought were the good canned meat emails of spam. The laws were purportedly designed to be “tailored regulations, which target deceptive and predatory practices and attempt to alleviate the negative effects of spam without unduly stifling lawful enterprise…” [1]

Under CAN-SPAM the U.S. government defines spam as a “commercial electronic mail message… the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose),” excluding transactional or relationship messages. 15 U.S.C. § 7702(2).

The CAN-SPAM Act outlaws certain practices in commercial email messaging including:

1. CAN-SPAM prohibits sending commercial emails containing “deceptive subject headings” and “header information that is materially false or materially misleading.” See 15 U.S.C. § 7704(a)(1), (2).

2. CANSPAM requires certain information and labels on email spam. For example, email spam must provide a physical postal address for the spammer. The message itself must identify itself as an advertisement or solicitation, and it must have a notice that recipients can reject subsequent spam. 15 U.S.C. § 7704(a)(5).

3. CANSPAM requires each message come with an “Opt Out” email address or link or some other mechanism to enable recipients to stop getting additional messages sent to them. 15 U.S.C. § 7704(a)(3).

CANSPAM also provides a penalty for spammers that violate the law.

Those entitled to sue under the CANSPAM act “may bring a civil action in any district court” to stop future spam messages or to recover either actual or statutory damages, whichever is more. 15 U.S.C. § 7706(g)(1). The Statutory damages under the CAN-SPAM Act can be serious with fines up to $300 per unlawful e-mail.

I know what you are saying, where do I sign up?

If the law was effective, spammers would be broke and our email boxes would be whistle clean free of spam. Sadly, neither is true for most of us (in fact more spammers are millionaires than there are consumers that have spam free email inboxes).

Why is CAN-SPAM ineffective in stopping spam? The reason lies in who can enforce CAN-SPAM. The Act authorizes the Federal Trade Commission and state and federal agencies to pursue legal actions to enforce the Act’s provisions. U.S.C. § 7706(a), (b), (f). But as for you and me, Congress only gave a limited private right of action. Under the Act the only private (non-government) entity or person that can sue is a “provider of Internet access” damaged by the spam. Only those providers, as defined by CANSPAM, have the right to sue to stop the spam and to recover money from the spammer. 15 U.S.C. § 7706(g)(1).

As Courts have interpreted CAN-SPAM the only private party that can sue the spammers is one who: (1) is an “Internet access service” provider (“IAS provider”), and (2) who proves was “adversely affected by” the spamming. Gordon v. Virtumundo, Inc. 575 F.3d 1040 (2009) . The Courts have ruled that IAS Providers are not consumers who get spammed but instead are the large scale commercial vendors of internet access. To compound the impotence of CAN-SPAM as a tool for consumers, the Courts have held that damage by spamming does not include wasted time, wasted computer resources or even wasted money in having to buy spam filters and other routine business expenses.

The Courts that have ruled on CAN-SPAM and its application to regular email spam sent to consumers were influenced because the Plaintiff in at least one of the seminal CAN-SPAM cases was suing spammers repeatedly and using CAN-SPAM to make money. Apparently the Courts felt that email spamming to make money is ok but consumers using laws against email spam to sue money making spammers is not what Congress intended with the law.

Consumers can sue under State and Federal fraud and deceptive trade practice laws but again, must show more damage than the business expenses associated in combating spam.

As it stands now, CAN-SPAM , is pretty much useless as a tool for consumers to protect themselves from commercial spam. As a result, our email inboxes are full of virus infected, time wasting emails that only a spam catching software making company could love.

Text messaging, however, is a different story. Consumers do have a remedy under the Telephone Consumer Protection Act 47 U.S.C. § 227 (TCPA). Clearly, just by the name of the the act related to consumer protection, Congress intended to have the courts actually protect consumers from text spam and other abuses of mobile and land phones by spammers and others who like to intrude on the privacy of others.

Because of the greater intrusiveness of text spam and because computers can send spam text messages automatically to any and every possible phone number without legal protection, text spam is virtually impossible to stop. Thankfully, Congress and the Courts have given teeth to the TCPA.

Under the TCPA any consumer who is sent an unsolicited text from equipment capable of automatic dialing has a cause of action to enjoin (get court order to stop) the text spam and has a right to compensation of at least $500.00 per unsolicited text message or actual damages, whichever is greater. The Courts can also award triple damages for willful and knowing violations of the TCPA.

The TCPA specifically gives a cause of action to consumers to sue to stop text spam and to make spammers pay. The TCPA provisions giving consumers a private right of action under the law is clear:

(3) PRIVATE RIGHT OF ACTION.—A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State— (A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions. If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph. 47 U.S.C. § 227.

Consumers now know that if they get text spam, if a company takes their cell number for one purpose (for ID or for appointments etc..) and then sends them spam commercial messages without specific permission to send automated text spam, they have broken the law. Consumers can sue directly, for at least $500 per illegal text, in direct money damages and also have the right to stop future text spam.

Under the TCPA consumers can take direct action to stop text spam and stop the misuse of their cell numbers that they provide for legitimate, non spam, business purposes. Common scams include companies that take cell phone numbers for informational purposes or for contact regarding appointments etc.. and instead, take those numbers and upload them to text messaging companies that then send out spam text messages. Other companies will purchase lists of cell numbers and broadcast text spam to those numbers. The law is clear that just because a consumer gives a cell number to a business for contact purposes that does not authorize the company to text spam them or to sell their cell number for others to spam.

Congress and the Federal Courts have the authority to protect consumers from Spam. They failed to protect consumers from email spam but consumers do have rights they can enforce to stop text spam. As a result, email spam is rampant and out of control. Text spam is under control, although there are still abusers that try to get around the laws, but when they get caught they must pay.

With email spam, the Courts and Congress have essentially refused to provide protection to consumers from email spam. As a result we all must deal daily with numerous email spam messages, we must pay for spam protection, our emails get lost in our spam catchers etc… The cost to consumers and businesses in lost productivity and hard costs for spam infected with viruses and other spam problems is in the billions each year. We need Congress to act to put the same consumer protections in the CAN-SPAM Act that it put in the TCPA. If Congress acts to provide consumers with the abiltiy to enforce CAN-SPAM, spammers will understand that email spam is not only wrong, and abusive it is also punishable with enforcement by consumers, we will finally be able to take back our email inboxes from the spammers.

[1] Gordon v. Virtumundo, Inc. 575 F.3d 1040 (2009)