http://news.com.com/2100-1028-994076.html

Spam law a matter of fax?

By Paul
Festa

Staff Writer, CNET News.com

Story last modified March 26, 2003, 4:00 AM PST

Like
a growing number of people fed up with annoying online marketing pitches, Mark
Reinertson decided to take his grievances to court.

And like many other
antispam activists, he brought his case before a small-claims judge and
eventually won a ruling against the defendant, in this case Sears Roebuck,
which was ordered to pay $539 in damages last month.

If Reinertson's case was in
many ways typical of a growing number of antispam suits heading into the courts
these days, it was also different in one important respect: While such cases
usually take advantage of a patchwork of state antispam legislation, Reinertson
filed suit instead under a federal statute banning junk faxes.

"When I was looking
into spam and possibly suing for it, I was doing some research and everything
that came up was coming up fax law," said the laid off network
administrator from Royal Oak, Mich. "So I read the statute and saw that it
equally applied to e-mail spam as junk faxes. So for $35 bucks I decided to see
whether a judge would agree. And he did."

The junk fax law and its
possible use against spammers is in the spotlight following an
appeals court decision last week that held a ban on unsolicited fax
advertising does not violate the First Amendment's free speech protections.

The ruling cheered antispam
activists, who hope that the 8th U.S. Circuit Court of Appeal's reasoning with
regard to the fax law will apply equally to similarly crafted curbs on
unsolicited e-mail ads. That could pave the way for federal antispam
legislation, which has been delayed in part due to concerns over potential
First Amendment issues, among other things.

But spam foes are looking
at more than just the precedent the decision sets for laws tailored to curbing
spam. They are also re-examining the possibility of applying the fax law in
suits against senders of spam, or unsolicited commercial e-mail, an approach
that has had mixed success in the courts so far. If successful, this approach
would give e-mail customers in states that have not passed antispam
legislation, including Michigan, a legal weapon to go after abusers while
awaiting passage of their own state law, and ultimately, national legislation.

Just the fax?

Reinertson won his judgment last month in small-claims court after accusing
Sears of sending him spam, basing his claim on the Telephone Consumer
Protection Act (TCPA).
Congress enacted the law in 1991 to criminalize the sending of "junk
faxes."

Sears defended its e-mail
marketing practices and acknowledged it had bungled its defense.

"This is not
representative of how Sears would normally defend such a claim on such a
topic," said Ann Woolman, a Sears representative in Hoffman Estates, Ill.,
who explained that a local store representative had argued its defense in
small-claims court, where lawyers may not argue for someone else. "In
retrospect, we should have had someone with e-mail marketing expertise to
defend the suit. We did not appeal and the case went virtually
uncontested."

Sears called the
application of the fax law to e-mail a "controversial topic" but
declined to comment on it further.

Reinertson based his claim
on the contention that the language of the TCPA encompasses, in its definition
of a fax transmission, the typical transfer and printing of e-mail messages.

Legal experts agree--to a
point--that any number of e-mail systems do in fact meet the definition of a
fax machine as outlined in the statute.

But given that Congress
passed the law before e-mail, much less spam, had achieved any significant
mainstream penetration, scholars and even some spam activists predicted a rocky
legal road for the application of the fax law to e-mail.

"Some suits against
spammers using the prohibition against junk faxes have succeeded in small
claims court, but such forums don't set precedents in concrete--or even
Jell-O," said Jason Catlett, founder of antispam group Junkbusters.
"I wish that the fax law evolved to apply to spam, but interpreting it
that way seems a bit of a stretch."

Even with a judge
sympathetic to a liberal reading of the statute, plaintiffs face an uphill
battle as computer technology evolves away from the fax definition as given in
the statute.

"A lot of e-mail
traffic is delivered now using newer technologies that couldn't remotely be
construed as involving a modem," noted Catlett.

A matter
of "persuasive authority"

The small-claims case decided against Sears is one of the few known attempted
applications of the fax law to e-mail spam. Another decision that activists and
scholars refer to is Aronson
v. Bright-Teeth Now, handed down June 19, 2002, which refused to apply the
fax law to e-mail spam.

Decided by a Pennsylvania
state trial court, the precedent does not bind other courts, but carries what
legal scholars call "persuasive authority," or the potential to be
cited by like-minded judges sorting out the issue in separate jurisdictions.

In the decision, the court
acknowledged that the TCPA definition could cover most e-mail systems, but that
Congress had not intended for the statute to cover e-mail.

"While the TCPA's
definition of telephone facsimile machine can be read to include most personal
computers in use today, it appears that Congress, by regulating only
unsolicited advertising that would be transcribed onto paper, was concerned
with recipients receiving paper they did not want," reads the decision.
"The question of whether unsolicited e-mail advertisements are covered by
the TCPA cannot be resolved simply by concluding that the definition of
telephone facsimile machine is broad enough to include unsolicited e-mail sent
to a computer system which permits the recipient to transcribe the text onto
paper. The controlling issue is whether Congress intended for the definition to
receive such a broad interpretation."

One legal scholar, quoted
repeatedly in the court's decision, voiced doubt that other courts would come
to the opposite conclusion.

"It is very unlikely
that courts will apply the junk fax law, as it currently stands, to
e-mail," wrote David Sorkin,
an associate professor of law at the John Marshall Law School in Chicago, in an
e-mail interview. "Of course, that's a separate question from whether
there should be a law prohibiting unsolicited commercial e-mail...Most
of the existing state laws on spam (are) so weak that I view them as
counterproductive: They remove some of the stigma of spam without doing much to
stop it, making the problem worse than it already is."

Frustration with the spotty
coverage of existing antispam law--and the absence of a federal statute--is
driving whatever movement there is among spam litigants to use the junk fax
statute.

For Reinertson, that means
new litigation.

"I think the Michigan
legislature should act on this," he said. "Meanwhile, I filed a bunch
more suits last month."