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Anti Spam Vigilantes and the Law
Jay Hollander, Esq. is the principal of Hollander and Company LLC, www.hollanderco.com, 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. Emarketersamerica.org, 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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