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19 Nov 2007
Bennett Haselton writes in Slashdot about a case he lost in small claims court in which a poorly briefed small claims judge decided against him. The defendant claimed it was indovidual mail, and although the mail is to us an obvious link exchange spam, the judge concluded otherwise because it started "Dear Webmaster."
Bennett's done a lot of small claims spam cases, with highly mixed results. It's not really surprising, since small claims judges are typically part time non-lawyers who know little about the law outside of the routine disputes they typically handle.
But even judges in higher courts have trouble interpreting laws they're unfamiliar with. Among the many problems with CAN SPAM is that few judges are familiar with it, and it's poorly drafted so that in a lot of situations they have to wing it. For example, in Gordon vs. Virtumundo, one of the points at issue was whether the From: lines in the spam were deceptive. The law contemplated From: lines which do identify the sender, and From: lines that lie and claim the sender is someone else, but it didn't contemplate a situation in which the From: line was simply irrelevant, referring to the contents of the spam rather than to a true or false sender. In that case the judge found other points on which to hang his decision (that the plaintiff wasn't a credible mail provider, having no users other than himself), but as CAN SPAM cases continue to be litigated, eventually questions like this will have to be thrashed out in case law.
Even once they're thrashed out, we can't assume that small claims judges will know to follow them, since most case law is provided to them by the parties in court, and it is not uncommon for an unethical lawyer to cite a case that's been overturned, hoping that the judge won't know about it.
If CAN SPAM were simpler, e.g., if it said no sending ads to people who haven't asked for them, along the lines of the junk fax law, it would be a lot easier to enforce. But it's not.
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