The Fight to Save America’s Inbox: State Legislation and Litigation in the Wake of CAN-SPAM

The fight to curb the ever-increasing amount of unsolicited commercial email or “spam” showing up in the inboxes of American businesses has generated both state and federal legislation. The CAN-SPAM Act of 2003 was enacted to create a bright-line between spam and legal commercial email. The Act preempted many state spam laws but also left significant enforcement abilities to the individual states. States that elect to create large civil damages for spam without criminalizing the transmission of unsolicited commercial email run the risk of winning cases where the damage awards are largely unenforceable and not effective deterrents to big-time spammers. The pursuit of civil damages in spam litigation, nonetheless, plays an important role in the overall fight against the flood of unsolicited commercial email. The effect of the use of criminal penalties in combination with large damage awards was illustrated in recent cases in Virginia and Florida. Virginia’s spam law, which makes certain types of spamming a felony, is a model for the over 20 states currently considering enacting new spam legislation. Legislative approaches which provide civil liability and criminal penalties for spamming may prove most effective in the fight against spam. Table of