Seth Goodman wrote on August 7, 2004 at 1:24 AM:
Sorry to spoil the jovial mood here, but our Federal
CAN-SPAM Act rescinded any right that an individual U.S.
citizen had to sue for damages as a result of spamming.
The provision which overrides State laws reads in part:
This Act supersedes any statute, regulation, or rule of a
State or political subdivision of a State that expressly
regulates the use of electronic mail to send commercial
messages, except to the extent that any such statute,
regulation, or rule prohibits falsity or deception in any
portion of a commercial electronic mail message or
information attached thereto.
See sub-paragraph 8 (2) (b) (1) of the Act
http://www.learnsteps4profit.com/antispamus.html
Please note the exception:
except to the extent that any such statute, regulation, or
rule prohibits falsity or deception in any portion of a
commercial electronic mail message or information attached
thereto.
This allows a State to pass a law giving individuals the
right to bring civil suit for damages suffered from
receiving a commercial email message with false or
misleading headers.
There is presently a bill before the California State
Assembly to do this and specifies the damage claim at up to
$1,000 per message or a total amount of $1 million dollars
US per incident.
http://info.sen.ca.gov/pub/bill/sen/sb_1451-1500/sb_1457_bill_200
40805_amended_asm.html
Also, the Federal Act states:
This Act shall not be construed to preempt the
applicability of--
(A) State laws that are not specific to electronic mail,
including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate
to acts of fraud or computer crime."
See sub-paragraph 8 (2) (b) (2) of the CAN SPAM Act of 2003
http://www.learnsteps4profit.com/antispamus.html
If someone wants to bring a civil action against a spammer
for damages under State trespass, contract, or tort law
they are free to do so.
Similarly, if a State has a fraud or computer crime statute
and this statute were:
* to define spoofing or phishing as fraudulent activities;
* make these activities a crime and also create a civil
right of action, the Federal law would not pre-empt this
statute.
Seth writes:
Only ISP's, State Attorneys General and the Federal
Government can bring civil action against spammers.
Under the Act, the parties who can bring civil actions are:
* Internet access services - a term defined in the
Communications Act. This includes ISPs, business networks,
ESPs, mail box providers and others who provide information
and email access;
* State Attorney's General;
* the Federal Trade Commission and other specifically
designated agencies of the Federal Government;
(The FCC is responsible for wireless spam.)
See generally section 7 of the Act
http://www.learnsteps4profit.com/antispamus.html
Seth goes on to write:
As for criminal prosecution, the DNSBL's collectively have
sufficient evidence to prove violations of the law in
thousands of cases, but how many injunctions have been
handed down by the Federal Government since the law took
effect in January? Exactly two. If I were a spammer, I
don't think I would worry about legal action.
Actually, there have been 3 civil actions taken and 1
related criminal prosecution commenced since the passage of
the Act.
http://www.ftc.gov/opa/2004/04/040429canspam.htm
- and -
http://www.ftc.gov/opa/2004/07/creaghan.htm
In the 2 actions brought in April, it seemed the Feds were
willing to work with the folks at Spamhaus.
However, in Muris's testimony before the US Senate in May,
the FTC rejected the "evidence" of Spamhaus and others
as spam lore.
The relevant portion of the testimony starts with this
comment:
Reliable information about spam is extremely limited,
although there is much “spam lore” that has little if any
basis in fact.
For example, some sources in Europe claim that the vast
majority of spam originates in the United States.
Similarly, some sources in the U.S. opine that most spam in
Americans’ inboxes arrives from Asia, South America, or
Eastern Europe.
In fact, nearly all spam is virtually untraceable, either
because it contains falsified routing information or
because it comes through open proxies or open relays."
To read the full comment, see pages 6 - 8 of the prepared
testimony of Chairman Muris found at:
http://www.ftc.gov/speeches/muris/040520spamemailtest.pdf
Overall, including actions taken before the passage of the
CAN SPAM Act of 2003, there have been 62 spam related
actions brought by the FTC.
For more on this and the overall perspective of the FTC
concerning international prosecutions, read:
http://www.itu.int/osg/spu/spam/presentations/STEVENSON_Session%2
06.pdf
Seth goes on to write:
Exactly who is going to bring all these lawsuits once we
"identify" the spammers? The largest ISP's have gone after
a few dozen spammers in high-profile cases. While it is
certainly the right thing to do, these few companies cannot
by themselves win this fight. SPF will make it easier for
us to blacklist spamming domains and do so more quickly,
but let's not kid ourselves about there being legal
consequences for most spammers - at least in the U.S.
On this point the jury is still out, but given what has
transpired to date, especially since the passage of the CAN
SPAM Act of 2003 there is cause for scepticism.
John
P.S. The fundamental flaw with the US position is that the
law cannot be used to enforce volume control.
The early results since the passage of Australia's Spam Act
of 2003 clearly suggest this view is not correct:
Spam Act closes down major spammers
http://www.aca.gov.au/aca_home/media_releases/media_enquiries/200
4/04-55.htm
- and -
Follow Australia!
http://www.spamhaus.org/news.lasso?article=154
John Glube
Toronto, Canada
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