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.
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