So Few Spam Lawsuits Because Judges Don't Understand Technology?

from the perhaps... dept

Mon, May 10th 2010 8:41pm — Mike Masnick

We've discussed various well known problems with the US's CAN SPAM law -- which, in some ways, is more about setting the rules for how to spam, rather than outlawing spam -- in the past, but Michael Scott points us to an analysis by John Levine, who argues that the real issue may be technologically unsavvy judges, which makes these kinds of cases very difficult to bring, successfully:

Judges tend to be reasonably smart, but few of them have a technical background. That means that before a judge can rule sensibly on a spam case, he or she needs to learn about the statutes and case law that apply, and also enough about e-mail technology to understand the evidence and evaluate the credibility of the lawyers' arguments on each side.... What this means is that the only cases that are likely to be filed are very easy ones, where the spammer didn't hide his identity or use affiliates, so the connection from the spam to the spammer is easy to show, or ones where the plaintiff has the legal skills to do a lot of the case work himself to keep the costs affordable, or unfortunate ones where the plaintiff is an anti-spam zealot with a poor case, leading to bad decisions....

While there may be some truth to this, I have to wonder if a bigger issue -- at least in the US -- is that CAN SPAM limits who can file lawsuits to the FTC and to ISPs. So individual recipients of spam basically have no recourse. If we expanded who could actually file the lawsuits to include those who receive a ton of spam, perhaps the lawsuits against spammers would increase.

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Filed Under: lawsuits, spam

13 Comments

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Andrew F (profile), 10 May 2010 @ 9:15pm

Why do we need more lawsuits?
By expanding who could sue, I'm hoping you mean to large organizations like Google and Microsoft that process huge amounts of e-mail each day

Because I could see a lot of frivolous lawsuits being filed if we allowed anyone to sue for spam -- e.g. I criticize a public official which triggers a lot of angry e-mails from others to said official. Would that make me a contributory spammer?

I'm sure you could write the law in such a way to limit some of the crazier suits, but I'm also sure that people would ignore those limits in the same way they ignore Section 230.

Moreover, a good chunk of these would undoubtedly become class action lawsuits. Each individual spamee doesn't suffer very much in damages, so it's only the cases were aggregated that law firms would suddenly be interested. Yet class action suits offer their own bag of worms.
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mirradric, 10 May 2010 @ 9:47pm

possible typo?
"which, in some ways, is more about setting the rules for how to spam, rather than outlawsing spam"

outlawsing - outlawing?
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Anonymous Coward, 10 May 2010 @ 9:54pm

Re: Why do we need more lawsuits?
"I criticize a public official which triggers a lot of angry e-mails from others to said official. "

Something similar happened, only the person also gave everyone the politicians E - Mail address and then everyone flooded his/her (I can't remember) E - Mail to protest something, and the court held that person accountable for giving away the politicians E - Mail address? Not sure where that went or if it got appealed or whatnot, but there was an article on techdirt about it.
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Anonymous Coward, 10 May 2010 @ 10:00pm

Even if you sue and win if you cannot find the spammer then it doesnt matter.
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Mike Masnick (profile), 11 May 2010 @ 12:31am

Re: Why do we need more lawsuits?
Because I could see a lot of frivolous lawsuits being filed if we allowed anyone to sue for spam -- e.g. I criticize a public official which triggers a lot of angry e-mails from others to said official. Would that make me a contributory spammer?

True... but I could see an argument for allowing lawsuits for those who really are impacted by spam.
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Mike Masnick (profile), 11 May 2010 @ 12:32am

Re: possible typo?
outlawsing - outlawing?

Oops. Fixed. Thanks.

Oddly, spellcheck totally missed that.
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RobLewis, 11 May 2010 @ 5:39am

Re: possible typo?
Serves you right for trusting a spellsing checker.
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Michael, 11 May 2010 @ 8:20am

I don't get it.
Its perfectly legal for companies to flood my ACTUAL mailbox with flyers and unsolicited mail, but its illegal for people to send emails which can be easily controlled by a spam filter? I would much rather receive spam than flyers and crap mail from politicians and business in my mailbox. Why is there a double standard here?
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William, 11 May 2010 @ 9:59am

Re: I don't get it.
Junk mailers pay the Post Office. You pay (unwillingly) to receive spam. That's one key difference, though not the only one.

Of course I think you should be able to opt out of junk mail, too.
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Overtkill (profile), 11 May 2010 @ 12:53pm

Re: Re: I don't get it.
You can get your name removed from many of the mailing lists. Just Google "opt out of junk mail" - Sites like "donotmail.org" and the like can get you started. They also have a petition going to start a do not mail list, similar to the federal do not call registry.
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Robert A. Rosenberg, 11 May 2010 @ 1:01pm

Re: Re: I don't get it.
Of course I think you should be able to opt out of junk mail, too.

William -
You CAN Opt-Out of Junk Mail but only on a per-sender basis. There is a USPS Form (I do not know the Form#) that you can file that states that "In Your Opinion" the mail being sent to you by the designated sender is JUNK MAIL and the USPS must either Not Deliver it or return it to the sender. Note that YOU not the USPS make the Junk Mail determination - The problem is that many of the officers at the branch (there is at least one per branch) who are responsible for this function refuse to follow the USPS regulations and block the mail.
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Anonymous Coward, 11 May 2010 @ 5:32pm

What ISP?
While there may be some truth to this, I have to wonder if a bigger issue -- at least in the US -- is that CAN SPAM limits who can file lawsuits to the FTC and to ISPs. So individual recipients of spam basically have no recourse.

Wait, you mean Microsoft is an ISP? (They've certainly used the law to go after spammers.) In what areas do they provide service? Or do they just provide service to *themselves*? Can I set myself up as an ISP to myself so I can sue spammers?
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K, 24 Jun 2011 @ 2:35pm

Why do we need more lawsuits?
I don't think it would be considered frivolous to submit a lawsuit against a spammer. Most of the spam email I open have no way to contact the company if you wanted to- for purchasing or for removing. Many of them 58% in my case seem to have an error message when I try to unsubscribe. I rarely get email from legitimate companies. It seems like there should be some rules for blasting people with 500 emails a day. It's a hassle and a drain to spend 30 minutes a day deleting emails that come into my email box and surround the email that I receive from people I want to receive emails from.
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