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4th Circuit Court Sides With a Spammer

Posted by kdawson on from the federal-law-means-they-can-spam dept.

bulled writes to tell us about coverage on CNet regarding a ruling a couple of weeks back that allows a spamming company to procede with their suit against a spamfighter. The 4th Circuit court ruled that the U.S. CAN-SPAM Act, much derided here, trumps the Oklahoma law under which anti-spam activist Mark Mumma sued Omega World Travel for spamming him. The ruling allows Omega World Travel's countersuit, for defamation, to go forward. From the article: "'There's been a lot of activity in the states to pass laws purportedly to protect their citizens' from spam, said Eric Goldman, a law professor at Santa Clara University. 'The 4th Circuit may have laid waste to all of those efforts.'"

4 of 154 comments (clear)

  1. ..of course it does. by Atlantis-Rising · · Score: 4, Informative
    Read the judgement- there's almost no question in my mind- this case was extremely clear cut. On page six, quoted is the Can-SPAM act in which


    This chapter supersedes any statute, regulation, or rule of a state or political subdivision of a state that expressly regulates the use of electronic male to send commerical messages...

    is quoted. That strikes down the application of Oklahoma's law, which the judge ruled
    ...is not limited to inaccuracies in transmission information that were material, lead to detrimental reliance by the recipient, and were made by a sender who intented that the misstatements be acted upon and either knew them to be inaccurate or was reckless about their truth.


    And then, the judge ruled that it didn't violate the CAN-SPAM act (The apellant, mummagraphics argued that the senders of the e-mails mislead mummagraphics as to the origin of the message, when the judge pointed out that it was a marketing e-mail- hence, it had all sorts of links and phone numbers and stuff to contact the people who had sent it.)

    With all that established, the appellants had no case.

    There's nothing fundamentally wrong with this, unless you have a problem with the doctrine of preemption- and if you do, that's a much, much larger issue than just spam e-mail.

    --
    "It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
  2. J. Harvie Wilkinson III - what a surprise... by isaac · · Score: 5, Informative

    J. Harvie Wilkinson III wrote this opinion in the 4th circuit. He's Reaganite authoritarian on the most "conservative" appellate bench in the country. You might remember him as the brave patriot who upheld the right of the executive branch of the US Government to indefinitely detain any US Citizen with no access to counsel, court, or any legal process to challenge that detention.

    Basically, the 4th circuit is an incredibly hostile place for "the little guy" when challenging a big business.

    -Isaac

    --
    I am not a lawyer, and this is not legal advice. For Entertainment Purposes Only.
  3. Re:Here's what I don't understand... by Intron · · Score: 4, Informative

    The well-named federal CAN SPAM law explicitly preempts state and local laws to allow spamming, so the Oklahoma law was already superceded. By providing a way to reach them and a working opt-out link, Omega met the low bar set by CAN-SPAM. The fact that you would have to be crazy to click on an opt-out link in a spam email didn't matter to Congress, and matters even less to a judge interpreting Congress' intent.

    The point is: complain to Congress about the bad law, not the judiciary who have to play the hand that they're dealt.

    --
    Intron: the portion of DNA which expresses nothing useful.
  4. Misquote of the statute by Animats · · Score: 5, Informative

    That's a deceptive misquote of the statute, which actually reads

    This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.

    The judge then took a narrow view of that language. His reading of the CAN-SPAM act is that "falsity or deception" above must rise to the level of a tort, and that the false information must constitute a "material deception". He then looks at the language of the CAN-SPAM act's criminal provisions, which prohibit the initiation of a "transmission to a protected computer of a commercial electronic mail message if such person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message". Applying that language to divine the intent of Congress, the judge then rules that deceptive material in a spam e-mail must be believed by the recipient, and about a material fact, to be actionable.

    Now, given the facts in this case, that's not totally unreasonable. The e-mails bore a return address of "cruisedeals@cruise.com", which was non-functional. But the messages were, in fact, advertising "cruise.com" and were in fact initiated by the operators of "cruise.com". So this is not an anonymous spammer.

    This is key. The CAN-SPAM act protects spammers who properly identify themselves. (Those are today routinely caught by spam filters.) That was the clear intent of Congress, based on lobbying by the Direct Marketing Association. There was no willful obfusication by the sender here; it was clear that "cruise.com" was behind all this.

    This decision doesn't provide any relief for anonymous spammers and scammers.