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Anti Spam Vigilantes and the Law

Jay Hollander, Esq. is the principal of Hollander and Company LLC,, a New York City law firm concentrating its efforts in the protection and development of property interests relating to real property, intellectual property and commercial interests, as well as related litigation.

The content of this article is intended to provide general information relating to its subject matter. Providing it does not establish any attorney-client relationship and does not constitute legal advice. Personal advice in the context of a mutually agreed attorney-client relationship should be sought about your specific circumstances.

You don't have to put your ears too close to the railroad tracks to hear the fast approaching federal anti spam legislation steamroller. Once the Direct Marketing Association abandoned its long standing opposition to any uniform anti spam legislation, the ground was cleared for the process to move forward in earnest.

Ironically, it's just at this stage that the anti spam vigilante movement has also gained momentum, causing increasing frustration and economic damage to e mail advertisers unilaterally deemed to be spammers by the vigilantes.

While more than half the states in the United States have enacted a patchwork quilt of legislation protecting people from spammers, definitions and remedies vary from state to state. But a growing number of private individuals acting like so many electronic "Zorros" have their own standards for determining which e mail marketers are spammers, as well as what the appropriate punishment should be. And when they find an e mail marketer they think is a spammer, the vigilantes strike.

The anti spam vigilante movement has graduated from mere acts of blacklisting to spamming the spammers, to more aggressive countermeasures, including denial of service attacks on the e mail servers of alleged spammers and inundating their phone lines, bringing their businesses to a screeching halt.

What are these vigilantes doing to frustrate e mail marketers, and are their actions legal? Can they be sued?

Anti Spam Tactics

In one well publicized example, a New York e mail marketing company's phones were hacked so that they rang all day long.

Other anti spam tactics have included Internet postings of an accused spammer's home or business addresses and phone numbers, website address, DNS server addresses, Whois information and e mail addresses, so that the information can be used by others to sign up the spammer for unwanted subscriptions to magazines and other junk postal mail. Some anti spammer activists spam the spammers back, sending thousands and thousands of e mails, so called mail bombing, to give them a taste of their own medicine.

Still others have suggested ringing the an alleged spammer's home doorbell and pretending to be a door to door salesman offering useless products, over and over, to duplicate the annoyance of spam; following a spammer's car and leaving flyers on the windshield; or putting junk mail in the e mailer's postal mailbox.

Happily, in America, one can say a great deal without getting into trouble, as long as what is said is opinion and not provably false. The First and Fourteenth Amendments to the Constitution guarantee freedom of speech and of the press. However, there are limits, and some of the anti spammers' suggestions and/or actions may be found to be stepping over the line.

The problem with taking an "eye for an eye" approach to trying to punish alleged spammers is that, as long as they have not been found to have violated any law, they are, by definition, engaging in a legitimate business. Just as spammers can be found guilty of breaking the law, so can anti spammers. The tragic difference may well be that many anti spammers are in the United States, while the servers of spamming companies often are not, making anti spammers at greater risk of successful legal action than the spammers they hope to combat.

What kinds of legal action are we talking about?

For one thing, many states have specific laws against interfering with someone's business. Mississippi has such a law, for example, and is allowed to put a violator in jail for six months if found guilty of this misdemeanor.

Anti spammer vigilantes also need to be concerned with the growing number of state computer abuse laws. For example, Georgia's computer abuse statute makes illegal the use of a computer with the intention of "obstructing, interrupting, or in any way interfering with the use of a computer program or data; or altering, damaging, or in any way causing the malfunction of a computer, computer network or computer program" regardless of how long the alteration, damage or malfunction persists. A prank hack into a spammer's computer to leave a "Stop Spamming" message on screen could have legal consequences to a Georgia prankster.

Cyberstalking and Other Crimes

What about cyberstalking? Could excessive zeal in the anti spam cause get you arrested for that? The U.S. Department of Justice defines cyberstalking as "the use of the Internet, e mail, or other electronic communications devices to stalk another person. Stalking generally involves harassing or threatening behavior that an individual engages in repeatedly, such as following a person, appearing at a person's home or place of business, making harassing phone calls, leaving written messages or objects, or vandalizing a person's property."

The Interstate Stalking Punishment and Prevention Act of 1996 forbids crossing state lines "with the intent to injure or harass another person... or place that person in reasonable fear of death or serious bodily injury."

At the 2003 FTC conference on spam, one spammer reportedly claimed he was being stalked. Another spammer, Ronald Scelson, testified at a recent U.S. Senate Commerce Committee hearing on spam that he always had used his real reply address until six months ago, when he felt "forced" by the "bullying" tactics of anti spammers to mask his e mail identity.

Let's take it even further. What if someone was so angered at receiving spam that he posted calls for people to kill alleged spammers? One man was convicted under New York's aggravated harassment statute for posting a message on an Internet newsgroup asking someone to kill a police officer. It would not be much of a stretch to have the same result apply to the same kind of threats made against alleged spammers. Probably, most of us would agree that death threats are over the edge of legitimate resistance to spam.

But what if you just call the alleged spammer and say nasty things to him or post such remarks on the Internet. Isn't this protected by our constitutional right to free speech? It depends. While there's no law against opinions, death threats and libel don't qualify as "free speech."

If you can't threaten alleged spammers, can you just spam them back? Have you taken a look at your ISP's Acceptable Use Policy lately? Most forbid spam. EarthLink's policy, for example, forbids any kind of mass mailing, not just the commercial variety. Spammers typically don't care if they lose an account. If they are thrown off one ISP, they just go to another. But what about you? How will you feel if you find your service terminated?

Then there is the increasingly formidable legal weapon of civil lawsuits brought based on a variety of legal theories.

One that has gained growing popularity is the theory of trespass to chattels. This legal theory has been successfully used in computer cases, including the well publicized case of Intel v. Hamidi, where the defendant, a former Intel employee, sent non commercial e mails on six different occasions over a two year period to all 30,000 employees at Intel. Intel argued that its computer servers were company property and that Hamidi had trespassed on that company property. The lower courts found him liable (though the Supreme Court of California in June 2003 reversed (78 page PDF)). Massive e mail campaigns against a spammer conceivably could cause such a complaint to be lodged against you, too.

Even the more benign form of retaliation, blacklisting, is not free from repercussions., a self styled trade representative of anonymous e mail marketers, has brought suit in Florida against anti spam blacklist organizations Spamhaus and SPEWS and other anti spam activists, charging libel and tortious interference with business. They have asked the court to declare such blacklists illegal.

The tort of interference with business involves an effort to drive someone out of business or to harm the business. According to some, that is precisely what anti spammers are trying to accomplish, without distinguishing between fraudulent spammers and legitimate e mail marketers. Keep in mind that you aren't the only one to enjoy the protections of the First Amendment's guarantee of free speech; commercial speech is also protected. In Bigelow v. Virginia, the United States Supreme Court in 1975 held that "speech is not stripped of First Amendment protection merely because it appears" in an ad. Then, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., the Court in 1976 said that speech that "does no more than propose a commercial transaction" is protected by the First Amendment.

All of this, of course, is why it's so hard to take action against spam and why efforts to obtain a uniform effective piece of federal legislation have been so persistent.

Trying to weed out the fraud and the illegal activity without treading on legitimate businesses and the Constitution is no easy task. But it's one that is being worked on at this very moment, with several federal anti spam laws being considered. No doubt about it, spam is annoying to most people, and finding a solution isn't easy. As Commissioner Mozelle Thompson of the Federal Trade Commission described it in a break during the FTC hearings earlier this year, "[F]inding a solution here is like putting socks on an octopus. There are too many moving parts."

In the end, as e mail recipients eagerly await effective legislation and enforcement, it's useful to remember that the rule of law applies to everyone, disgusted victims of spam, included.

Copyright © Jay Hollander, 2007. All Rights Reserved.

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