Initially, this is not a request to have my e-mail address harvested for inclusion on every mortgage, insurance, debt consolidation or porn e-mail list.Initially, this is not a request to have my e-mail address harvested for inclusion on every mortgage, insurance, debt consolidation or porn e-mail list. That being said, there is a lot of confusion regarding the legal issues surrounding bulk e-mail. This article is simply designed to enlighten you to the potential actions that may be taken by the authorities and private parties against spammers.

Federal Law

There is currently no federal law directly prohibiting sending bulk e-mail. A number of bills have been submitted to Congress for debate, but none appear on the cusp of actually being enacted into law. It is anticipated, however, that a variation of the Unsolicited Commercial Electronic Mail Act will be passed at some point.

While the specific elements of the final law are still unclear, the current language in the bill calls for significant punishment. As currently configured, the Federal Trade Commission (FTC) would be given power to pursue spam producers, particularly those that do not provide for and acknowledge opt-out options. Specifically, the FTC and ISPs would be allowed to pursue bulk e-mailers with injunctions and damages amounting to $500 per e-mail sent with a maximum liability of $50,000. Whether the bill becomes law is still to be determined. Regardless, the federal authorities are focusing on the subject and webmasters should expect regulation by the federal authorities in the near future.

State Laws

Unlike the situation with federal law, twenty-five states have passed some form of legislation regarding unsolicited e-mail. You should expect additional states to pass similar acts in the near future. The current states with statutory law regulating unsolicited e-mail are:

Arkansas
California
Colorado
Connecticut
Delaware
Idaho
Illinois
Iowa
Kansas
Louisiana
Maryland
Minnesota
Missouri
Nevada
North Carolina
Oklahoma
Pennsylvania
Rhode Island
South Dakota
Tennessee
Utah
Virginia
Washington
West Virginia
Wisconsin

A review of the legislation in each state is beyond the scope of this article. Generally speaking, many states require that accurate headers be used and that they notify the recipient that the e-mail is an advertisement, particularly an adult advertisement, and provide an effective opt-out option. All states require that the mail identify an accurate routing path, meaning that the sender using double relays or blind relays is violating the law in question.

Other states have attacked unsolicited e-mail by simply stating that if a sender is violating the written policies of an ISP receiving the e-mail, then they are breaking the law. The constitutionality and enforcement of these laws are in question, but it should be very clear that there are laws defining or attempting to effectively ban unsolicited e-mail. Nonetheless, you should be aware that contrary to the views of some, there are actual laws that restrict bulk e-mailing.

Litigation

There is a common misconception among webmasters regarding the effect of government regulations in relation to the Internet. The misunderstanding seems to arise from the belief that if the government has not passed a specific law regarding a subject, then the webmaster is free to do as they wish. This assumption can be brutally incorrect as a number of spam producers have learned.

There are generally two areas of law that any person must consider, to wit, statutory law and common law. “Statutory law” refers to specific laws enacted by a government authority regarding a particular subject. The Computer Fraud and Abuse Act is an example of federal statutory law. “Common law” refers to basic legal theories that have been developed through the courts over time such as “trespass.” Webmasters must realize that many common law theories appear to be applicable to the Internet. A number of ISPs have had success in applying these concepts to producers of unsolicited e-mail.

America Online is undoubtedly the most aggressive pursuer of spam producers. AOL has filed many lawsuits against spammers and judgments against spam defendants are beginning to become common. In one such case, AOL v. National Health Care Discount, Inc., AOL was awarded compensatory damages in the amount of $319,500 for actual damages plus prejudgment interest and an additional $100,000 in punitive damages. A similar lawsuit brought against Web Communications and Sexy Web resulted in a default judgment in the amount of $1,578,175.48.

The claims used by AOL to succeed in these suits did not seek so much to rely on statutory law as to raise the theory that spammers were “trespassing” when they sent unsolicited e-mail messages. Specifically, AOL has successfully argued that their system is private and that unsolicited e-mails are, in essence, individuals trespassing on the system. As a result of this trespass, AOL has successfully argued that it is damaged by the excessive costs associated with administering and maintaining the AOL systems in light of the spam messages. As the judgments have revealed, the courts are receptive to such an argument. Importantly, this theory can be applied even if you are complying with the various statutory laws that are on the books in the above-mentioned states.

With all the negative attention focused on the adult Internet industry, it should be clear that spamming is only giving industry opponents more ammunition to attack adult businesses. I am not naïve enough to believe, however, that such a fact will stop the conduct of those that are spamming. As a result, consider the cases mentioned above as a warning regarding the potential financial pitfalls of spamming.

Richard Chapo is the lead attorney for AdultInternetLaw.com, based in San Diego, California. AdultInternetLaw.com provides legal services to adult businesses, focusing on business strategy, corporate and contract preparation and site reviews. He can be contacted at adultlaw@yahoo.com.

This article is for general education purposes and does not address every facet of the laws surrounding the subject. Nothing in this article creates an attorney-client relationship.