Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
For permission, see CMI.

Questions and Notes on Spam and the CAN-SPAM Act

1. What is "spam"?  A helpful Web encyclopedia defines it in part as follows:
    "Electronic junk mail or junk newsgroup postings.  Some people define spam even more generally as any unsolicited e-mail.  However, if a long-lost brother finds your e-mail address and sends you a message, this could hardly be called spam, even though it's unsolicited.  Real spam is generally e-mail advertising for some product sent to a mailing list or newsgroup."

http://www.pcwebopedia.com/TERM/s/spam.html (visited December 29, 2003).

This simple paragraph illustrates one of the chief difficulties of defining "spam" from a legal perspective.  If the definition turns on the "unsolicited" character of the message, it may include material that the recipient doesn't really want to exclude.  If the definition turns on the "unwanted" character of the message, then the recipient may have to read it in order to determine whether it is "spam."  In the latter case, it will be impossible, even in theory (in the general case), for the sender to know whether his/her message is "spam" before it is received and read, at which time a prohibition against sending the spam will be practically useless.

2.  If the definition of "spam" turns on the "unsolicited" or "unwanted" character of the message, a second difficulty also arises: who determines whether the message is "unsolicited" or "unwanted"?  Consider the Hamidi case, in which Intel purported to "reject" messages that Hamidi sent to its employees.  Does Intel have the right to characterize those messages as "unsolicited" or "unwanted" by tens of thousands of its employees, some of whom may wish to read them?

3.  The First Amendment of course provides an additional complication.  Ever since the seminal case of Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), the Supreme Court has recognized that "[t]he First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation."  447 U.S. at 561 (citation omitted).  Although the "Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression[,]" id. at 563 (citation omitted), the Supreme Court has never explained precisely how much lesser.  Thus unsolicited commercial advertisements —even for such offensive things as pornography (which may be lawful if not legally obscene), body-part enhancements, get-rich-quck schemes, etc.—may be constitutionally protected expression.

4.  A series of Supreme Court decisions, cited by Justices Brown and Mosk in dissent in the Hamidi case, make clear that the First Amendment does not prevent citizens from claiming the law's aid in restricting delivery of unwanted mail, telephone calls, and newspapers.  These cases are based on the notion in Red Lion that the audience's rights, not the speaker's, are paramount.  Thus, nothing in the First Amendment, at least in theory, precludes anti-spam legislation.

In practice, however, the same difficulties discussed above arise again in the First-Amendment context.  If lawful spam control depends upon the recipient's rejection of spam, how does the law handle unsolicited messages that the recipient has not yet had a chance to read and therefore has neither accepted nor rejected?  Wouldn't any categorical characterization as "spam" (such as a prohibition on ads for body-part enhancement) run up against the First-Amendment's strict-scrutiny of content-base regulation of speech?  And doesn't the First Amendment exacerbate the difficulty of deciding who has the right to reject alleged "spam"?  If, for example, Intel rejects Hamidi's messages seeking to organize Intel's employees, would a law enforcing Intel's blanket rejection violate individual Intel employees' First-Amendment acceptance-or-rejection rights?  Who is the "audience" under Red Lion, Intel or its employees?

5.  Even if these issues were easily solvable, what about the requirements of due process, i.e., fundamental fairness to to commercial marketer who, however unpopular, may have First-Amendment rights under the Supreme Court's commercial speech doctrine?  Could the law properly impose criminal, or even civil, liability on the sender of a message who does not know that the addressee objects to receiving it?  If not, i.e., if the law must require knowledge of rejection in order to impose liability, what sort of notice should be required?  Should it be enough if the sender's computer has received a rejection even if no human being is aware of it?  if the sender has purposefully arranged its affairs or computer systems (as many spammers do) to avoid notice or make its receipt as difficult as possible?  Does/should it matter if at least a small percentage or recipients respond to most so-called "spam" (otherwise its transmission would not be profitable)?

6.  Just before it adjourned in late 2003, Congress passed the so-called "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003", or the "CAN-SPAM Act of 2003," Pub. L. No. 108-187, 108th Cong., 1st Sess., _____ Stat. _____ (2003).  Although not yet codified, the text of this legislation can be found on line in bill form at the "Thomas" service of the Library of Congress (click on "Public Laws"; then scan down to 108-151 - 108-198 and click on "Search"; then scan down to 187 and click on bill; then scan down to and click on "Text of Legislation").

Review this legislation, particularly Section 4 (adding 18 U.S.C. § 1037 to the federal Criminal Code) and the definitions in Section 3.  Does this new law purport to eliminate all spam, or just spam with certain characteristics?  If the latter, what are the characteristics?  Is the new law likely to survive a First-Amendment challenge by commercial interests?

7.  Critics of the new law have said that, far from eliminating spam, it encourages spam on the part of legitimate commercial enterprises while perhaps providing a means for curtailing spam on the part of unscrupulous enterprises.  Do you agree?  If so, could you draft a law that would do a better job of curtailing spam more broadly, while at the same time recognizing marketers' commercial speech rights under the First Amendment?

8.  Both the majority and the dissenters in the Hamidi case cite previous decisions in which courts found spammers liable for the tort of trespass to chattels.  On what element of that tort did these cases depend?  That is, what was the chief distinction between these cases, in which recipients prevailed against spammers, and Hamidi, in which the sender prevailed?

Do you agree that the distinction is appropriate?  Is the average individual recipient of spam likely to be able to make the showing that the California Supreme Court required of recipients in Hamidi?

9.  As everyone who has used e-mail extensively knows, spam can be a terrible nuisance.  Screening, blocking, or deleting spam can consume minutes or even hours of time weekly, depending on how sophisticated you are in using technological barriers and how careful you have been to protect your e-mail address(es) from unauthorized disclosure, distribution and use.  But is the monetary damage caused by spam enough to motivate the average consumer to sue?

The class-action lawsuit is supposed to provide a solution to the problem of wrongful conduct that damages many consumers, but each only slightly.  Is a plaintiff class action a good "solution" to the spam problem?  Is class certification likely in such a suit?  Would class questions "predominate" under Fed. R. Civ. P. 23(b)(3)?  Why or why not?  What about the distinction addressed in Note 8 above?  Could it be addressed for a whole class in one action?

10.  As this brief review suggests, there may be no "magic bullet" to kill spam.  One solution that has received significant support is a "do not spam me" registry, perhaps maintained by the Federal Trade Commission, along the lines of the FTC's "do not call" registry for unsolicited telephone marketing.  The law could impose civil or criminal liability for sending unsolicited messages to persons who put their e-mail addresses on the "do no spam me" list.

Would such a list work?  Would criminal or civil sanctions based on the list pass First-Amendment muster, despite foreseeable technical difficulties in keeping the list up to date?

Even if so, would the list merely preclude so-called legitimate marketing, or make it more difficult, while doing little to curtail unscrupulous marketing by spammers whose messages are false or misleading and whose return addresses are nonexistent or falsified?  Wouldn't unscrupulous marketers simply use the list as a "free" source of additional e-mail addresses?  Is there be an economic incentive to do so if marketers, as they sometimes do, pay spammers based on the number of messages sent?  the number of responses, whether positive or negative?  Do the answers to these questions suggest that spam may be a problem that we all may have to live with, no matter how distateful that prospect may seem?

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