Written by Bob Huntsman
October 30, 2006
How "Can Spam" Helps Spammers
 I am a web / software developer that also happens to be a US attorney, returning to this forum after an absence, and I am regularly frightened by US law. I have concluded that US law, although sensible in theory, more often than not is unfriendly towards businesses, especially small businesses. I sent a neighbor to small claims court on a consumer matter involving a couple of thousand dollars, and the other side moved the action to district court where lawyers are required, and a simple matter resulted in thousands of dollars of attorneys fees on both sides. This stuff happens all the time.
With respect to spam litigation, I have always found spam distruptive to web-related businesses, and decided to take a shot at spammers under the Can Spam act. The attractive part of the law for spam haters is that it provides for damages that allows you, in theory, to whack a spammer financially big time for the number of spams he or she spams without showing how that spam actually economically damages you. The other problem of course is you have to identify the spammer.
I set up tools, collected and analyzed spam, identified a well known U.S. company that was sending us all sorts of unsolicited email under the guise that I had previously ordered their products, when, in fact, I could conclusively show that I never did and that their list included far more than their customers. I filed the action, the other side hires a major litigation law firm, and the other side moves to toss the case from Federal Courts (and Can-Spam), on the grounds that the fraud was not the kind of fraud that Can Spam prohibits. The argument was that the law prohibits fraudulent headers where a fake sender or recipient is identified, but having a fraudulent list in the sense that the list as a whole was fraudulent was the wrong kind of fraud. Holy cow! Lawyers! Off with their heads!
The judge (also a lawyer of course) tossed the case from Can-spam and Federal Court and left me with a state action for fraud which is worthless because there have to prove damages. The Court gave no weight to the fact that the law was intended to reduce spam, and by construing the law narrowly, the net effect is the law is a license to spam instead of a regulation to curtial it.
I think we will all agree that spam has increased, not decreased since the Can-spam law was passed...
Bob Huntsman
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