Feeds

US appeals court cans CAN-SPAM suit

A farewell to litigation factories

Seven Steps to Software Security

In a decision that could make it harder for internet users to take spammers to court, a federal appeals court has upheld the dismissal of a lawsuit against a company that sent a man more than 13,000 unsolicited emails.

A three-judge panel from the Ninth US Circuit Court of Appeals agreed with a lower-court judge that under a federal law that went into effect in 2004, plaintiff James S. Gordon Jr. lacked standing to sue online marketing business Virtumundo. The panel ruled that under the Controlling the Assault of Non-Solicited Pornography and Marketing, or CAN-SPAM, act, lawsuits can only be brought by select law-enforcement agencies and providers of an IAS, or "internet access service."

The judges went on to dismiss claims Gordon brought under a separate Washington-state law forbidding deceptive commercial emails, holding that that CAN-SPAM preempted the law. The state statute allowed private individuals to sue people who send them deceptive marketing emails that were unsolicited. The net effect, legal experts said, is that internet users will have fewer options for taking legal action against spammers.

"It is going to be harder for individuals to sue companies that send them spam because trying to shoehorn a claim under statutes prohibiting deception will be looked on by courts with skepticism," said Dave Kramer, an attorney at Wilson Sonsini Goodrich & Rosati who helped draft the Washington law.

Critics have long complained that CAN-SPAM was full of so many loopholes that it had little effect on the torrent of spam that lands in inboxes everyday. The Ninth Circuit's decision is only likely to strengthen those claims. It will set a higher bar for individuals who want to invoke it in lawsuits. Specifically, they will have to show they are an IAS and will then have to show they faced significant harm as a result of receiving spam.

When Gordon brought the suit in 2006, he was already a fixture in state in federal courts, which he peppered with lawsuits against spammers. He made it a habit to send spammers responses demanding they cease their junkmail campaign and demanding $500 for any repeat offenses. He also set up multiple email accounts on behalf of friends and family members and monitored them for unsolicited messages.

Gordon told the court he had collected more than 13,800 junk messages.

This has led to criticism that Gordon is a "professional plaintiff" who opportunistically milks anti-spam laws for his own personal gain. Those points weren't lost on US Appeals Court Judge Ronald M. Gould.

"For a person seeking to operate a litigation factory, the purported harm is illusory and more in the nature of manufactured circumstances in an attempt to enable a claim," he wrote in a concurring opinion. "In my view, manufactured claims should not be tolerated absent a clear endorsement from Congress."

A PDF of the decision is available here. ®

Mobile application security vulnerability report

More from The Register

next story
Yorkshire cops fail to grasp principle behind BT Fon Wi-Fi network
'Prevent people that are passing by to hook up to your network', pleads plod
HIDDEN packet sniffer spy tech in MILLIONS of iPhones, iPads – expert
Don't panic though – Apple's backdoor is not wide open to all, guru tells us
Mozilla fixes CRITICAL security holes in Firefox, urges v31 upgrade
Misc memory hazards 'could be exploited' - and guess what, one's a Javascript vuln
NEW, SINISTER web tracking tech fingerprints your computer by making it draw
Have you been on YouPorn lately, perhaps? White House website?
BMW's ConnectedDrive falls over, bosses blame upgrade snafu
Traffic flows up 20% as motorway middle lanes miraculously unclog
LibreSSL RNG bug fix: What's all the forking fuss about, ask devs
Blow to bit-spitter 'tis but a flesh wound, claim team
Attackers raid SWISS BANKS with DNS and malware bombs
'Retefe' trojan uses clever spin on old attacks to grant total control of bank accounts
Manic malware Mayhem spreads through Linux, FreeBSD web servers
And how Google could cripple infection rate in a second
prev story

Whitepapers

Designing a Defense for Mobile Applications
Learn about the various considerations for defending mobile applications - from the application architecture itself to the myriad testing technologies.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
Reducing security risks from open source software
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
Boost IT visibility and business value
How building a great service catalog relieves pressure points and demonstrates the value of IT service management.
Consolidation: the foundation for IT and business transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.