“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).

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