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St. Mary's Law Journal

Jason A. Smith

Abstract

Unsolicited email advertisement, spam, has been a problem of the internet since its inception. In the face of this onslaught, users have fought back with a variety of methods, involving filtering software. Users have also resorted to the courts, suing spammers under the “trespass to chattels” theory. Not all courts have agreed with this theory, as there is often little evidence of the owner’s use of their servers being adversely affected by a digital trespass. While the states were the first to address overwhelming amount of spam, Congress address the issue with the first nationwide anti-spam legislation, the CAN-SPAM Act. The first actions brought under the CAN-SPAM Act were primarily brought by government agencies accusing electronic marketers of fraud. The CAN-SPAM Act was later used by spammers seeking protection under the Act to continue sending unsolicited email ads. The CAN-SPAM Act provides a framework for legitimate companies to continue using email as a marketing tool. The Act bans deceptive practices, regulating how spam is sent and requiring each message to provide an opt-out method from further messages. Recipients may also sue for damages under the CAN-SPAM Act when false or misleading messages are received. The Fifth Circuit Court of Appeals’ holding in White Buffalo v. University of Texas has had far reaching effects. Private Internet Service Providers (ISPs), as owners of their own servers, have a right to prevent spam from being transmitted onto their property. However, states, as public entities, do not necessarily have the same interests as private entities when they operate their servers. As a result, states should be required to meet different standards. The full extent of the question of what makes a server public still needs determining.

Publisher

St. Mary's University School of Law

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