The Spam Diaries

News and musings about the fight against spam.
 by Edward Falk

Tuesday, May 22, 2007

Venkat Balasubramani comments on the state of CAN-SPAM

On today's C-Net: Can-Spam put to the test.

As you may know if you've kept up with this blog, the CAN-SPAM act has been much in the courts lateley. Significant cases include E360 vs Spamhaus, which may ultimately hinge on whether E360 is violating CAN-SPAM, and whether or not CAN-SPAM provides immunity to blocklisting services; vs Mark Mumma, in which the court ruled that's violations of CAN-SPAM, if any, were insignificant enough to make Mumma's spammer accusations libelous, Braver vs Ameriquest which was settled out of court to Braver's satisfaction, and Gordon vs Virtumundo in which the court ruled that Gordon wasn't enough of an ISP to qualify as a plaintiff under CAN-SPAM (which does not permit individuals to sue spammers).

The Gordon case is especially interesting for several reasons. One is that although Gordon does operate an email ISP named, the court still ruled that he wasn't big enough to be entitled to sue under CAN-SPAM. Other interesting points are that Gordon's entire income came from suing spammers, that the court cited the Mumma case, and that the court has opened the door for the Virtumundo spammers to counter-sue Gordon.

Venkat argues that the CAN-SPAM law had spawned a small cottege industry of litigation brought by private individuals and small ISPs, and that the Mumma and Gordon cases represent the death-knell for these cases.

Most significantly in my opinion, the court has now raised the bar for any ISP to sue spammers. Before, the CAN-SPAM act provided for statutory damages — that is, the damages are assumed and the ISP doesn't have to enumerate them. The Gordon ruling included the assertion that Gordon was not "adversely affected". If this sets a precedent, ISPs will now need to prove not only the spam, but actual damages.

Venkat covers a number of other significant points in his article, which is well worth reading IMO.

In short, the Mumma and Gordon cases are establishing the precedent that fighting spam in the courts is for the big boys only. I wish I had better news to report.

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