Hartman & Winnicki, P.C.
Counselors At Law
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Paramus, New Jersey, 07652
Phone: (201) 967-8040
Fax: (201) 967-0590
Rick@Ravin.com
www.Ravin.com

Article
(February 2003)

SPAM – Unsolicited Commercial E-mail:
What Can Individuals and Businesses Do?*

By:  Richard L. Ravin, Esq.**

      The sheer volume of unsolicited commercial e-mail (“UCE”) is clearly the biggest problem concerning spam on the Internet today. The use by unscrupulous spammers of falsified sender and routing information, their misuse of requests to remove e-mail addresses, and their shifting of costs to the recipients and their ISP’s are the other major problems associated with spam. Additionally, there is the annoyance and inconvenience of sifting through numerous unwanted e-mails on a daily basis.

      There is currently no state or federal law which provides for a blanket prohibition of UCE, however, federal law does prohibit unsolicited advertisements sent via fax and telemarketing to cell phones due to cost-shifting. Recipients of UCE and their ISP’s bear the cost of computer resources, server storage, bandwidth utilization, and personnel associated with receiving UCE, while the spammers pay nothing. When spammers have hijacked a company’s name or domain name to falsify the “sender” or “From” field, the victimized company suffer injury to its good will and loss of productivity and business.

Tips For Individual E-Mail Users

Individual e-mail users can take steps to reduce spam:

  1. Use two e-mail address accounts: a primary account for work and personal communications, and a secondary account for use when registering on Web sites, ordering online goods or services, or for use in public such as discussion forums and posting on web sites.

  2. Avoid requesting removal from the mailing lists unless sure that the sender is not an imposter, and that it is a reputable company (and therefore, likely to actually honor the removal request). Unscrupulous spammers treat removal requests as merely confirmation of a real live e-mail recipient, and then re-use the e-mail address or even selling it.

  3. Use spam blocking software or spam knowledgebase available on the Internet.

  4. The Federal Trade Commission Web site www.ftc.gov site has much useful information on UCE (see Consumer Protection, E-Commerce section: http://www.ftc.gov/bcp/menu-internet.htm and general consumer information page regarding spam at: http://www.ftc.gov/bcp/conline/edcams/spam/coninfo.htm. Recipients of unwanted or deceptive e-mails can forward them onto the FTC at: uce@ftc.gov. The following articles/information are available on the FTC Web site:
(a) “You’ve Got Spam: How to ‘Can’ Unwanted E-mail” (http://www.ftc.gov/bcp/conline/pubs/online/inbox.pdf).

(b) “ Don't Want Your Email Address Harvested?” http://www.ftc.gov/bcp/conline/pubs/online/dontharvest.htm.

(c) “Let the FTC know if a ‘remove me’ request is not honored. If you want to complain about a removal link that doesn't work or not being able to unsubscribe from a list, you can fill out the FTC's online complaint form at www.ftc.gov. Your complaint will be added to the FTC's Consumer Sentinel database and made available to hundreds of law enforcement and consumer protection agencies." http://www.ftc.gov/bcp/conline/pubs/online/inbox.htm.

(d) "In addition, the DMA [Direct Marketing Association] recently launched a new EMail Preference Service to help you reduce unsolicited commercial emails. To "opt-out" of receiving unsolicited commercial email, use the Direct Marketing Association's online form at www.e-mps.org. Your online request will remain effective for one year." http://www.ftc.gov/bcp/conline/pubs/alerts/optoutalrt.htm.

(e) “FTC Names Its Dirty Dozen: 12 Scams Most Likely to Arrive Via Bulk Email.” http://www.ftc.gov/bcp/conline/pubs/alerts/doznalrt.htm.

(f) “Unsolicited Mail, Telemarketing and EMail: Where To Go to ‘Just Say No’” http://www.ftc.gov/bcp/conline/pubs/alerts/optoutalrt.pdf. (includes sample “opt-out” form to send to credit bureaus).

(g) For business engaged in UCE, see: “’Remove Me’” Responses and Responsibilities: Email Marketers Must Honor ‘Unsubscribe’ Claims” http://www.ftc.gov/bcp/conline/pubs/alerts/remvalrt.pdf
  1. Individuals and businesses can also contact local state Attorney General as to false or deceptive e-mail advertising, including failure to remove from list, or falsified “sender” or routing or header information.

Tips For Businesses

      Businesses should guard against imposter e-mails using their company’s trade name, trademark or domain name as “sender” or otherwise incorporating it in the e-mail. When spammers hijack the company domain name:

  1. “Undeliverable” messages (usually a large quantity) get bounced to “sender”, which will inundate company with traffic, tying up bandwidth and computer equipment. It is not uncommon for up to half the e-mail in a bulk e-mail list to be undeliverable, which would wreak havoc on e-mail systems and amount to a denial of service on some systems.

  2. Angry recipients of spamming, thinking the e-mail originated with the company or domain name appearing as “sender”, generate hate-mail, or “flaming” which can also bog down equipment and bandwidth.

  3. The above e-mail traffic will usually go to the administrator of the e-mail server or network, causing loss of personnel time in dealing with thousands of unwanted e-mail messages.

  4. The following economic injuries may occur:
a. Decrease in performance of company’s and their ISP’s computer equipment and Internet connectivity, which in turn will cause further expenditure in computer equipment, bandwidth and personnel, all of which translates to economic injury.

b. Harm to good will, trade name, trademarks and service marks.
  1. Legal theories for recovery may include: 
a. Lanham Act claims of false designation of origin, trademark infringement and dilution;

b. state unfair competition claims;

c. common law trespass to chattel claims for interference or devaluation of computer equipment, loss of use, loss of customers and business.

d. Other theories may be applicable.
  1. Businesses should also visit the FTC Web site (www.ftc.gov) for information on UCE, and contact the FTC or local state Attorneys General.

State Spam Laws

By the end of 2002, 26 states had enacted spam laws. To see a list of these states visit http://www.spamlaws.com/state/index.html, which was posted by David E. Sorkin, Associate Professor of Law, Center for Information Technology and Privacy Law, The John Marshall Law School. Generally, the state spam laws regulate, but do not prohibit UCE. Most states have consumer protection laws which also may be useful in prosecuting false or deceptive advertising or statements made in a spam e-mail. Many other states have laws pending in their legislatures. Basically, the state spam laws provide various combinations of the following:

a. Spammers cannot use false routing information, e.g. “Sender” or “From” field or header information.

b. Spammers cannot falsely state that permission has been granted to use e-mail address.

c. Spammers cannot use email address when person has “opted-out”.

d. Require a mechanism for removal from list or “opt-out”, either by return e-mail, via a Web site, or by a toll free telephone number.

e. Require the subject line or first line of e-mail to state that it is an advertisement, or require such phrases as: “ADV:” or “ADV:ADLT”.

f. Provide for actual damages or statutory damages, ranging from a few dollars per violation to upwards of $500 or $1,000 per violation.

g. Suits can be brought by injured party or Attorney General.

Personal Jurisdiction and Conflicts of Law

Whether a spammer will be called to answer in a court of the state where the e-mail was received (as opposed to where the spammer operates) will depend on whether the spammer has any physical presence in the recipient’s state, or whether the spammer has any systematic and ongoing presence in the recipient’s jurisdiction. A spammer may also be forced to defend an action in the recipient’s state if he or she purposefully directed the e-mail to that state. Deciding which law applies (the state of the spammer or state of the recipient) depends on the particular facts of the case and each state’s respective law on conflict of laws.

No Federal Spam Law

There currently is no federal spam law, mostly due to lack of agreement as to the definition of spam. For instance, is spam only unsolicited commercial e-mail (e.g. advertisements for sale of goods or services), or is it unsolicited bulk (or mass) e-mail, which would include non-commercial, speech (such as political speech)? Also, Congress wants to be careful in not passing a law that would offend the First Amendment.

First Amendment and Spam

Generally, spamming laws regulate, rather than prohibit commercial speech, by prohibiting deceptive practices, in much the same way consumer protection laws prohibit deceptive advertising. There have been cases which have held that the First Amendment is no defense to a private contract action, because ISP’s are not “state actors”. Courts have upheld the right of ISP’s to restrict the dissemination of unsolicited bulk e-mail to their private networks and block UCE when addressed to their subscribers. (See Cyber Promotions, Inc. v. AOL).

While ISP’s may have the right to prohibit its users from sending unsolicited e-mail (whether commercial or otherwise) and may employ blocking technology, a state or federal law prohibiting mass e-mailing (including non-commercial e-mail) would not be able to pass constitutional muster without demonstrating a compelling governmental interest and a narrowly tailoring a remedy. However, the First Amendment burden on the government would be less stringent if the law prohibited merely unsolicited commercial e-mail. In that case, the law may be able to sustain a First Amendment challenge because of the cost–shifting that occurs when spamming -- that the recipients of the e-mail, and their ISP’s, are bearing the burden and costs of receiving and storing these unwanted e-mails, while the spammers are paying nothing for the right to access or use the recipients’ e-mail facilities, or those of the recipient’s ISP. Such a law would be analogous to the federal law against sending unsolicited advertisements to faxes and telemarketing to cell phones. (47 U.S.C. § 227).

Although there is a First Amendment right to speak anonymously, that right would not extend to a spammer posing as an imposter -- using a company’s name or domain name as the “sender” or in the “From” field of the e-mail, for deceitful purposes or in violation of the Lanham Act or state unfair competition laws. Nor would the First Amendment protect falsifying the e-mail routing information for deceptive purposes.

__________________

** Richard L. Ravin, Esq., is a member of Hartman & Winnicki, P.C., and head of the firm’s Internet and Intellectual Property Law Group, with offices in Paramus, New Jersey and New York City. He is Vice Chair of the New York State Bar Association’s Intellectual Property Section, and past (founding) Co-Chair of the Internet Law Committee of the Section. His e-mail address is: rick@ravin.com.

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