“SPAM Sleuth” has no standing under CAN-SPAM

The U.S. Court of Appeals for the Ninth Circuit held that the plaintiff, James S. Gordon Jr. and his company, Omni Innovations LLC, was not a “provider of Internet access service (IAS) adversely affected by a violation.”

The FTC has primary enforcement authority CAN-SPAM.  State attorney generals are provided a private right of action to enforce certain provisions of the Act on behalf of its citizens, and Internet access service providers (IAS) are similarly afforded a private right of action in certain circumstances.

No circuit court has seriously addressed CAN-SPAM’s standing provision.  The Ninth Circuit stated that the standing provision is “ambiguous” at best.

Congress purposefully limited the parties who have standing to pursue a CAN-SPAM claim.  According to the court, the FTC, law enforcement, and internet services are “best suited to detect, investigate, and if appropriate, prosecute violations of the CAN-SPAM Act.”

• “While Congress did not intend that standing be limited to fee-for-service operations, we think it did intend to exclude plaintiff [James S. Gordon Jr.] who, despite certain identifying characteristics, did not provide the actual, bona fide service of a legitimate [IAS] operation.”

The Ninth Circuit has never defined an IAS provider under the statute, and, in the same opinion, refused to establish a general test to determine what it means to be an IAS, saying it was not necessary to the holding.

I am not sure if any court would ever create and official definition or a test for an IAS.  It seems that the very nature of the Internet would make the test useless in a matter of years.  Decide for yourself by looking at the full opinion here (pdf).

Prof. Cyberlaw has returned

With the new semester on the horizon please stay tuned for more updates, news, information, and all things Cyberlaw!

Colorado Ethics Bar Metadata Opinion

The Colorado Bar’s Ethics Committee decided that ethics rules permit a Colorado lawyer to search for and review metadata embedded in an electronic document received from opposing counsel or a third party unless the lawyer was notified before reviewing the document that confidential information was inadvertently transmitted.

The burden, then, of protecting any sensitive metadata rests with sending lawyers, not with the receiving lawyers.  The full text of the opinion is available at the CBA’s Ethics website.  Prof. Andrew Perlman, of my alma mater Suffolk Law, has a good summary of the case and a look at other metadata ethics decisions in the U.S. at the Legal Ethics Forum Blog .

EFF condemns music download lawsuits

Apparently, the RIAA’s legal strategy has failed to curb the amount of illegal file-sharing across the country, according to the EFF.  The EFF’s full report is titled “RIAA v. The People: Two Years Later“

Ethics, Privacy and Digital Rights – IA G128

Welcome to the Ethics, Privacy and Digital Rights (Cyberlaw) Blog.  This site is intended as a tool for students enrolled in Northeastern Univerity’s College of Computer and Information Science.

Please stay tuned for syllabus, updates, documents, and more.