The Future of Spam Litigation After Omega World Travel v. Mummagraphics - KATHERINE L. WONG

Abstract:

Unsolicited commercial e-mail ("UCE"), commonly known as spam, is both ubiquitous and profitable. In 2006, approximately forty percent of the thirty-one billion e-mails sent daily were classifiable as spam, costing U.S. corporations an estimated $8.9 billion and non-corporate Internet users $255 million.

The Future of Spam Litigation After Omega World Travel v. Mummagraphics KATHERINE L. WONG Harvard University - Harvard Law School Harvard Journal of Law and Technology, Vol. 20, No. 2, p. 459, 2007

To fight spam, ISPs and consumers have mainly relied on self-help measures, including manual filtering, software filtering, and private no-spam registry services. Prior to 2003, a diverse set of state laws provided the only regulatory framework for spam. While these laws took different approaches, they generally sought to eliminate deceptive e-mail practices and reduce the volume of spam.

To address the deleterious effects of spam, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM") of 2003.

CAN-SPAM, like state anti-spam laws, attempts to address deceptive marketing practices and the burdensome volume of spam by imposing header and content requirements on UCE. The Act preempts state anti-spam laws, but it contains a savings clause that allows states to prohibit falsity or deception in UCE and preserves actions arising out of state law that are not specific to e-mail.

To date, both the FTC and ISPs have brought actions under CAN-SPAM. This article examines the likely effects of the Fourth Circuit's recent decision in Omega World Travel, Inc. v. Mummagraphics, Inc. on spam litigation and prevention.

In Mummagraphics, the Fourth Circuit addressed the scope of CAN-SPAM's preemption clause and the appropriate standard for imposing liability for errors in e-mail header information ("header errors"). After providing background on CAN-SPAM and the Fourth Circuit's decision, this article critiques the court's analysis by arguing that its interpretation of CAN-SPAM may insulate senders of spam from legal action. It also examines the possible implications of Mummagraphics for future spam litigation.

While acknowledging that CAN-SPAM has weaknesses, this Note suggests that courts can use CAN-SPAM to facilitate self-help measures, without substantially undermining regulatory uniformity, by interpreting the preemption provision more narrowly and by enforcing the Act's content requirements more strictly.