Suing Spammers: What works?

jdedman4 writes "According to Junkbusters, various civil lawsuits against Spammers have used a number of theories, including the analogizing of junk email to junk faxes. As there have been a number of "IANAL, but . . ." discussions of late, I was curious as to which legal theories, if any, you all thought might work against spammers. Does the fact that a spammer deluges us all with automated commercial email subject him and his enterprise to personal jurisdiction in the courts of the fifty states? What torts do the spammers commit (intentional affliction of emotional distress, invasion of privacy, false light, nuisance, et cetera?) Might an unfair trade practices lawsuit be brought? Is state or federal law a better weapon? Why haven't the legislatures been more active in this area? It seems like this is a pure public relations winner for a media-conscious political figure - everyone hates spammers. If this is such a widespread and pernicious menace(which of course it is), why hasn't some enterprising young plaintiff's attorney filed a class action suit? Is it that the spammers are essentially judgment proof, or that they are difficult to find, or all of the law is analagous but not directly helpful?"

Comments

Re:Theft of Services

[jdedman4]

Outright theft has always been my favorite course of thought.

I wonder if there is any precedent for that? Courts usually have a tough time making such a leap from penal statutes which don't directly address a specific electronic infraction. Remember, too, that we would be dealing with 51 sets of criminal theft statutes, as well. Take Texas, for example. Compare statutory theft to statutory theft of services. Now, I think we all know that when these statutes were drafted that the authors did not envision spam as it didn't exist at the time of the drafting. There's just no way. The defense attorney would be able to convincingly argue that legislators did not envision these types of offenses and thus they are not covered under the statute. That is why this enterprise is so perilous when we attempt to argue by analogy (i.e. pursuing spammers under junk fax laws) or couch electronic offenses into the statutory language of pre-Internet penal statutes.

Remember, that some courts are still struggling with initial hurdles of authentication and admissibility [PDF] of electronic email and web data. My favorite such quip from a federal judge (from my own state of Texas):

"While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation.... Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretations of the hearsay exception rules found in FED. R. EVID. 807". See St. Clair v. Johnny's Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D. Tex. 1999)

The PDF link is to an article I wrote earlier this year on that very subject. See also the Siddiqqui case for the application of the rules of evidence to e-mail. The point: How can such a jurist be convinced to apply pre-digital laws to spammers? That is the question.

jd