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Prying Back The Lid On The CAN-Spam Act: No Private Right To Challenge Spammers

When a lawyer thinks about test cases, usually the main considerations revolve around the makeup of the plaintiff and the defendant.  Lawyers want to put the white hat on the plaintiff and the black hat on the defendant.  With the CAN-Spam Act, that consideration is fairly straightforward:  pick a spammer for a defendant and someone who's inbox is bursting with more Viagra and laser printer toner ads and important career information that will make you look three inches taller than a newspaper recycling bin brimming with the Sunday paper leftovers.  But a word of caution here:  the CAN-Spam Act's private enforcement provisions are limited to "Internet access service" providers (like Comcast, Cox, AT&T), not you and me as individuals. 

Still, not an impossible task.  Round up some exemplarly emails and ask the big guys to file suit.  It has already happened - MySpace won a $230 million victory against spammers who sent 730,000 emails, but reportedly hasn't collected on the judgment.  One spammer was convicted of felony spamming, sentenced to nine years in jail, but was later allowed by the Virigina Supreme Court to challenge the constitutionality of the statute. 

Nevertheless, the United States continues to be the target of almost 30% of the world's spam.  If you have any doubt, look in your inbox.  But I'm getting off track.  We're still looking for a white-hat plaintiff to file suit against spammers. 

Enter Jim Gordon, who owned http://www.gordonworks.com/ and got too much spam.  To put an end to it, Gordon sought $10 million from two companies, Virtumundo, Inc. and Adknowledge, Inc. as well as their sole shareholder, Scott Lynn, who the court called "in modern parlance, spammers."  Gordon filed suit under the federal CAN-Spam Act after collecting thousands of unsolicited bulk emails as evidence that Virtumundo was a spammer of the worst kind.

The federal District Court for the Western District of Washington granted summary judgment to Virtumundo earlier this year ruling that Gordon had not suffered "adverse effects" within the meaning of CAN-Spam.  Yep, he lost, but then appealed.

The Ninth Circuit just rejected an appeal from Gordon, upholding the lower court's decision and fing that Gordon was not an "Internet access service" provider, and therefore  did not have standing to sue.  Ninth Circuit Judge Richard Tallman wrote:

[O]ur review of the congressional record reveals a legitimate concern that the private right of action be circumscribed and confined to a narrow group of private plaintiffs. [T]his demonstrates to us that lawmakers were wary of the possibility, if not the likelihood, that the siren song of substantial statutory damages would entice opportunistic plaintiffs to join the fray, which would lead to undesirable results. While Congress did not intend that standing be limited to fee-for-service operations, we think it did intend to exclude plaintiffs who, despite certain identifying characteristics, did not provide the actual, bona fide service of a legitimate operation.

Finally, the Court noted:

It matters not that [Gordon] entered the keystrokes or clicked the mouse. Nor is it relevant that he created gordonworks.com e-mail addresses for family and friends, and not merely himself. While Verizon and GoDaddy might have a compelling argument that they are IAS providers within the meaning of the CAN-SPAM Act, Gordon's claim that he holds such elite status is unconvincing.

And with that, the Court ruled against Jim Gordon and all private users of the Internet to attack spam through the CAN-Spam Act.  Oh look, I just got another email.  How about that?  I can lose a pound a day on this diet!!!