CAN-SPAM Act of 2003: Private Right of Action for "Internet Access Service" Providers

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Section 7(g) of the CAN-SPAM Act of 2003 enables "internet access service" providers to bring a civil action in Federal court to obtain injunctive relief or monetary damages (including substantial statutory damages) for violations of certain requirements of the Act. See 15 U.S.C. § 7706(g). In order to bring such an action, the internet access service provider must be able to show at least one of the following:

1) it has been adversely affected by the inclusion of materially false or materially misleading tranmission information in a spam email (i.e. a violation of Section 5(a)(1) of the CAN-SPAM Act of 2003, codified at 15 U.S.C. § 7704(a)(1));

2) it has been adversely affected by use of a problematic spamming technique prohibited in Section 5(b) of the CAN-SPAM Act of 2003, codified at 15 U.S.C. § 7704(b);

3) it has been adversely affected by a failure to adhere to the legal requirements for emails containing "sexually oriented material" (i.e. a violation of Section 5(d) of the CAN-SPAM Act of 2003, codified at 15 U.S.C. § 7704(d)); or

4) it has been adversely affected by a pattern or practice of including deceptive subject lines in spam emails and/or failing to enable effective "opt-out" of spam, violating Section 5(a)(2), (3), (4), or (5) of the CAN-SPAM Act of 2003, codified at 15 U.S.C. §§ 7704(a)(2)-(5).

See 15 U.S.C. § 7706(g)(1).

"Internet access service" is defined in 47 U.S.C. § 231(e)(4) as "a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services."

Finding this definition of an "internet access service" provider ambiguous, courts have relied on statutory history, including the Senate Commerce Committee Report, to establish limits on the types of plaintiffs entitled to bring a private cause of action under the CAN-SPAM Act. See Gordon v. Virtumundo, 575 F.3d 1040 (9th Cir. 2009); Gordon v. Virtumundo, 2007 WL 1459395 (W.D. Wash. 2007).

The question as to which type of plaintiff counts as an "internet access service" provider is very close to the question as to which plaintiffs have standing to bring claims under the CAN-SPAM Act of 2003. In Gordon v. Virtumundo, 575 F.3d 1040, 1049 et seq. (9th Cir. 2009), the United States Court of Appeals for the Ninth Circuit "comprehensively" addressed the question of standing. At a minimum, the Ninth Circuit held, the plaintiff must meet two requirements: it must be an "internet access service" provider, and it must actually be "adversely affected" by one of the violations of the CAN-SPAM Act set forth above. See 575 F.3d, at 1049 et seq.

Courts within the appellate jurisdiction of the Ninth Circuit have interpreted Gordon to require the showing of actual harm from specific spam messages (rather than generalized harms from receipt of spam) in order to establish an "adverse effect," a standard that has proved to be nearly impossible to meet in practice.

For further discussion, see: