Federal court spurns anti-spammer | SC Media
Architecture, Application security

Federal court spurns anti-spammer

August 10, 2009

A federal appeals court has ruled that private individuals cannot sue email marketers under the federal CAN-SPAM Act if they do not qualify as an internet service provider.

The court also ruled that, in this case, federal law has precedence over state law in providing legal remedies for junk mail.

In his appeal, James Gordon Jr. had asked the court to overturn a decision by a lower court to dismiss a case he brought against online marketer Virtumundo, seeking $10 million based on his receipt of thousands of commercial emails.

The Ninth Circuit Court of Appeals in Seattle said that it would not overrule the decision because Gordon lacked standing to sue, and hinted that in litigating this case and others he was doing little more than running a "cottage industry" from which he could profit.

“The CAN-SPAM Act was enacted to protect individuals and legitimate businesses — not to support a litigation mill for entrepreneurs like Gordon,” the court said in its decision. "The fact that Gordon derives substantial financial benefit but endures no real ISP-type harm from commercial email, coupled with his unusual efforts to seek out and accumulate — rather than avoid or block — spam, demonstrates that he has not been adversely affected by alleged violations of the federal act in any cognizable way."

In Gordon's business, he collected commercial email messages, then sent replies claiming that the sender was liable for any further messages -- to the tune of $500 each.

Specifically, any commercial message he got was automatically responded to with a message that said “Notice of Offer to Receive Unsolicited Commercial Email." The response claimed that the offer was a binding contract, and the sender must either agree to stop sending messages or pay Gordon $500 for each unsolicited email he received, according to court records.

In addition, the court held that CAN-SPAM superseded the state of Washington's email statute, said Venkat Balasubramani, founding partner of Focal PLLC, a technology and internet-focused law firm in Seattle.

“The finding puts into question many other state spam statutes and raises the possibility that CAN-SPAM will be the only regulatory scheme prevailing in spam cases," he told SCMagazineUS.com Monday.

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