The Virtual Lawyer - Spam, Spam and More Spam

Posted March 1 1998

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I suppose junk e-mail is a dubious sign of Internet maturity. After all, if your snail box is full of the stuff, why should the e-mail box be any different? Hardly a week that goes by that I don't receive several unsolicited offerings along with my other e-mail. Invariably, the unwanted stuff involves a some sort of get-rich scheme or attempt to sell me something that I don't want. I should be flattered, I guess: Someone out there took the trouble to (1) collect my e-mail address and (2) identify me as a person with disposable income to flush down the john. Or maybe it's the other way around: maybe I stick out as such a big sucker that I am an irresistible target. Either way, I guess I've arrived. All joking aside, however, it's getting to be a big problem for everyone.

Flowers and Spam

Imagine owning and doing business under your own domain name. One day, your mailbox is flooded with undeliverable commercial spam returned to you as the sender. In fact, there are so many returned messages that your ISP's mail servers repeatedly drown in the flood. Your ISP calls and screeches imprecations into the phone. You, however, never sent any of the offending spam. Some creep appropriated your domain name as sender.

This happened recently to Tracey and Patrick Parker of Austin, Texas. It seems that some boiler room operator in California sent out commercial spam by the millions under the Parkers' domain, "flowers.com." Predictably, at least a quarter of each load was undeliverable and was returned to the real domain. Well, the Parkers and their ISP didn't take it lying down: They sued the bastard in Texas state court and won actual damages, attorneys fees and a permanent injunction against the spammer.

Nothing Exotic

Interestingly, the Texas court found that the spammer's conduct constituted a common-law nuisance and trespass. No exotic new cause of action was required because the ancient ones worked quite nicely: trespass to one's personal property has long protected property owners from unwanted intruders. Likewise, a nuisance is any conduct that interrupts another's peace and order. In this case, the Internet analogizes neatly with the rest of life. Using another's domain as a landfill is like having a load of offal dumped on your lawn. Not only is it an intrusion, but you bear all the costs, burdens and smells without any corresponding benefit. They spam, you pay.

CompuServe v. Cyber Promotions

The same reasoning went into the recent consent decree signed in the case of CompuServe v. Cyber Promotions. It seems that Cyber Promotions, a direct marketing company, sends zillions of unsolicited e-mail ads out to the ends of the earth. Many thousands of these ads wound up in the mailboxes of CompuServe subscribers, who promptly complained. CompuServe installed filters on its system to keep out Cyber Promotions' spam. Cyber Promotions efficiently and elaborately circumvented each attempt by CompuServe to filter the junk. In fact, when confronted, Cyber Promotions claimed the absolute the right to send spam to subscribers based upon the First Amendment, claiming that CompuServe's proprietary system was part of a larger Internet "postal" service. After all, they claimed, the mailman can't filter third-class garbage before it goes into the mail slot, so why should CompuServe be able to do the same with e-mail? Take that, you stiffs.

CompuServe eventually sued for, you guessed it, trespass and eventually settled with Cyber Promotions, insisting on and getting a permanent injunction against all further spam into its system. From the language of the court's memorandum granting CompuServe's request for a preliminary injunction, it must have been clear to Cyber Promotions that the jig was up. The court pretty much agreed with CompuServe that its system was not analogous to the mail, and clogging the works with unwanted junk was a costly intrusion. Better to settle than get beaten to a bloody pulp in the end.

Spam Go?

In the last year, marketers and Internet providers have taken their fight indoors. Currently, there are a number of bills before Congress addressing one or another aspect of the junk problem. The marketers are in there pitching as well: They probably figure that legislation is inevitable, so they are writing bills that, quite naturally, favor their activities. Of all the bills, the most interesting is H.R. 1748, "The Netizens Protection Act of 1997", sponsored by Rep. Christopher Smith (D) of New Jersey. The bill is quite simple and straightforward.

For many years now, sending unauthorized commercial faxes has been a violation of federal law. Under current law, the recipient can sue the sender or advertiser in state court for up to $500.00 for each infraction. H.R. 1748 would extend similar rules to e-mail. The virtue of this bill is its simplicity: it creates no bureaucracy and allows ordinary citizens to sue offenders in small claims court. It is also effective: When was the last time you received a junk fax?

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