Who can sue under the CAN-SPAM Act?

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The CAN-SPAM Act provides standing for certain governmental entities and for "internet access service" providers.

The Federal Trade Commission ("FTC"), certain other Federal agencies, and state attorneys general have standing to bring suits under Section 7 of the Act. See 15 U.S.C. § 7706.

Providers of "internet access services," if adversely affected by a violation of the Act, have standing to bring a claim under the Act. See 15 U.S.C. § 7706(g). The term “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."

The U.S. Court of Appeals for the Ninth Circuit dealt with the issue of standing for "internet access service" providers in Gordon v. Virtumundo, 575 F.3d 1040 (9th Cir. 2009). In this case, the court determined that the plaintiff was not an "internet access service" provider because he relied on a third party (GoDaddy.com) to register his domain name and host his internet access services (mainly email). See id. at 1051-52. The court also determined that the plaintiff was not "adversely affected" by a violation of the CAN-SPAM Act because he was not able to show a close causal connection between the defendants' spamming activity and any specific types of harm that are "uniquely" suffered by internet service providers. See id. at 1052-55. Because the plaintiff could establish neither his status as an "internet access provider" nor an "adverse effect" from a violation of the CAN-SPAM Act, the court held that he lacked standing, affirming the judgment of United States District Court for the Western District of Washington.

While the Ninth Circuit refused to provide an exhaustive specification as to what may be required in order to establish one's status as an "internet access service" provider, the court did state clearly that "providing e-mail accounts cannot alone be sufficient." Gordon v. Virtumundo, 575 F.3d at 1051. The court also hinted that "[t]here may well be a technical or hardware component implicit in the definition" of "internet access service." Id. at 1052. In the court's judgment, the plaintiff's reliance on a third party (GoDaddy.com) to host his internet access services - a reliance that meant, among other things, that he had no access to the hardware running GoDaddy's software, and that he was dependent on the telecommunications services of an additional third-party (Verizon) for online access - took him outside the boundaries of any "reasonable definition" of "internet access service" provider. See id. at 1052.

Courts, including the Ninth Circuit, have also reacted negatively to the perception that "professional plaintiffs" are attempting to use Congress' broad definition of "internet access service" provider to bring claims under the CAN-SPAM Act and recover large statutory damage awards. See Gordon v. Virtumundo, 575 F.3d at 1055-57.

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