Fighting spam in the courts [LWN.net]

Reading legal filings has never been your editor's idea of a good time, and many of the filings which have gone his way over the last year have been less fun than usual. So it has been a bit of a relief to read complaints with titles like "Microsoft Corporation v. John Does 1-50 d/b/a Super Viagra Group." The big ISPs are figuring out that spam is costing them money; as a result, Microsoft, AOL, Earthlink, and Yahoo have filed a set of lawsuits aimed at those who, they say, have sent spam into their systems.

These suits have been trumpeted as the first application of the much-maligned U.S. "CAN-SPAM" act. The complaints (most of which can be found on FindLaw) do, indeed, cite this act, but they also bring many other counts and could easily have been filed before that act was passed. Microsoft's complaint, for example, alleges "trespass to chattels," "conversion," violation of the Washington electronic mail act, violation of the federal computer fraud and abuse act, Lanham act violations, and more. AOL's complaint brings in violations of the Virginia computer crimes act, dealing in falsified bulk email software (Virginia law, again), conspiracy to commit trespass of chattels, and more. The CAN-SPAM act, clearly, is only part of the picture.

The filings are good for publicity and as a way to look like something is being done, but it remains to be seen whether they will accomplish anything against spam. The fact that the complaints are filed against over 100 "John Does" makes one problem clear: these ISPs still do not have a clear idea of who they are fighting. They claim that, armed with subpoenas, they can follow the money trails starting with the manufacturers of the products being pitched and track down the spammers from there. Perhaps, but it would be a mistake to assume that the people involved will be easily found, or that it will be easy to prove that they, in particular, sent the messages in question.

That said, legal action is likely to be an important part of the fight against spam in the future. With luck, a squad of expensive corporate lawyers can help to push spammers further underground and make it harder to actually earn money by sending junk email. There are reasons to worry too, however; anti-spam laws are, to a great extent, being used to squelch a certain type of unpleasant speech. It is not that hard to imagine those laws being used to shut down other types of speech which powerful groups find distasteful, much like domain name laws and procedures have been used to pull the plug on consumer and satire sites. Making spammers uncomfortable is a good thing; let's just hope this effort stops there.

(Log in to post comments)

Fighting spam in the courts

Posted Mar 11, 2004 15:38 UTC (Thu) by RobSeace (subscriber, #4435) [Link]

Bah, it's very silly to equate spam in any way with "free speech" issues...
Stopping someone from sending you an endless stream of obnoxious, offensive,
deceptive, and often illegal material, which you have no interest in seeing,
is NOT in any way infringing on their "free speech"... No more than would
be stopping someone breaking into your home, so they could yell at you at
the top of their lungs, and force you to look at offensive images... People
have a right to say what they want; however, they DON'T have any right to
force others to listen to it... And, that's what spammers are trying to do:
force everyone to view their spam, by all their fraudulent tricks and
deceptions, designed to evade filters and look like legit mail... If all
spam were trivial to block, I don't think you'd see many people too upset
about it, or many people supporting laws against it... Because, only people
who wanted it (or, were just plain stupid) would receive it... But, it's
their trying to force it down everyone's throat, when they clearly don't
want it, which is infringing on OUR rights; stopping them from shoving it
down our throats most definitely won't infringe on THEIR rights, in any
way, because they have no right to force their garbage on us... And, yes,
it's certainly possible opportunistic fascists might try to use spam laws
against non-spammers, in an attempt to squelch real free speech, but then
that seems like business as usual: such pro-censorship folks will always
find SOME way to try to squelch free speech, so one more tool in their
armory isn't really going to make much of a difference... Hopefully, people
will always stand up to such bullying, and not be intimidated into silencing
themselves, in such cases... But, regardless, I definitely don't think that
worrying about such abuses should cause anyone to hesitate to support
anti-spam laws... (Not that there have been any really decent ones yet,
though...)

Fighting spam in the courts

Posted Mar 11, 2004 23:54 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

Right. The laws we're dealing with so far are not a threat to free speech. They attack the manner of speech (deception, using misappropriated resources, etc.) rather than the content.

But I'd still keep a watchful eye on it. Once we get the forged from addresses, misleading subject lines, and commandeered computers sorted out, there will be a push to go further and classify spam by the message contained. For example, telling huge numbers of people you have Viagra for sale could be punishable per se. And then we start treading that fine line between the government protecting people from things they don't want to hear and the government protecting people from things they don't want other people to hear.

Personally, I'd be happy in anti-spam laws could force e.g. all the emails selling viagra to contain the word "viagra" in the subject line. I could take it from there.