We all hate spam. It clogs our inboxes and increases the likelihood of accidentally deleting a legitimate message that gets lumped in with the ads for penis enlargement methods, free worldwide shipping and online pharmaceuticals. Most of us suffer through the problem in silence and accept it as an unavoidable consequence of life in the digital era, though.
One man, however, tried to turn his hatred of spam into a going concern. James Gordon attempted to sue spam distributors under the private right of action created by the CAN-SPAM Act after Gordon began receiving unsolicited commercial emails on several email accounts on the domain he leased from godaddy.com. CAN-SPAM allows a "provider of an Internet access service" (IAS) to
bring a lawsuit if they have been "adversely affected" by behavior that
violates the statute. The IAS provider can seek to enjoin the spamming
or sue for either actual or statutory damages, whichever is greater.
The district court granted summary judgment for the defendants in the case, and the Ninth Circuit affirmed
last week. The Ninth Circuit panel found that Gordon did not have
standing to bring the suit since he was not an IAS provider, despite
his claim that the email accounts he provided to his friends and family
elevated him to IAS provider status.
The panel also held that
Gordon had not been adversely affected by the spamming. Since the
statute referred to the adverse effects of spam on an IAS provider, the
court reasoned that the adverse effects must have something to do with
the functioning of the IAS. The court used system crashes or hardware
replacements as examples, but didn't limit the effects to the list of
injuries it proposed.
The panel pointed out that Gordon had
suffered none of these adverse effects. In fact, the only impact on
Gordon was the time and effort required to clear the spam out of the
email accounts. The Ninth Circuit expressly denied that this impact of
spam satisfied the adverse effect requirement for standing under
In handing down its decision, the court also noted
that Gordon's suit was little more than a scheme to set up a
"litigation factory" that would allow him to continuously sue spam
distributors for statutory damages. That, the court determined, went
against the statutory intent of CAN-SPAM and the judicial branch's
interest in judicial economy.