Federal CAN-SPAM Act:
The newly enacted federal anti-spam statute generally preempts
the existing state statutes. The text is available here.
Spam on the Rise: Estimates vary, but studies
in 2002 indicate that the share of email traffic that consists
of spam has risen from around 7% as recently as 2001 to
somewhere between 12 and 32% in 2002. The economics
of the increase are easy to understand, because an email
transmission costs less than a penny per item, compared
to about 75 cents for direct-mail marketing and one dollar
for telemarketing.
Using AOL Accounts to Send Spam Violates the CFAA:
A federal district court has held that a variety
of efforts to send spam to AOL subscribers violated the
CFAA. Among other things, the defendants exceeded the authorized
access granted by AOL when they used an AOL account to harvest
e-mail addresses and when they tried to avoid the effect
of AOL's junk e-mail filters. See America Online,
Inc. v. LCGM, Inc., 46 F. Supp. 2d 444 (E.D. Va. 1998).
Harvesting Metatags Can Be Tresspass to Chattels:
A federal district court has held that it is trespass
to chattels under the theory of Bidder's Edge to
harvest metatags from another's Web site. The opinion accepts
relatively slight evidence of interference and damage as
adequate to satisfy Bidder's Edge. Oyster Software,
Inc. v. Forms Processing, Inc., 2001 WL 1736382 (N.D. Cal.)
Employee Spam Held Not Trespass to Chattels:
In a closely watched case from the California Supreme Court,
it is held that emails sent to current Intel employees by
a previous employee do not cause a trespass to chattels
absent proof of harm to Intel's computer equipment. Intel
Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003). An edited
version is available here.
Confidentiality Agreements and Unauthorized Access
Under the CFAA: The First Circuit has held that
it violates the CFAA to use specialized information to harvest
data from a Web site when that information is subject to
a confidentiality agreement. The court reasoned that use
of that information in violation of the agreement made the
access unauthorized for purposes of the CFAA. See
EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st
Cir. 2001).
British Regulation of UCE: Great Britain's
recently adopted Electronic Comerce (EC
Directive) Regulations 2002 adopts rules that all commercial
email clearly identify the sender (Section 7) and that all
unsolicited commercial email be "unambiguously identifiable
as such" (Section 8). That regulation implements Section
13 of the EU's
2002 Electronic Communication Privacy Directive. That
Directive requires member states to enact legislation penalizing
the use of electronic mail for direct marketing purposes,
absent prior consent from the recipient. The Directive also
requires member states to prohibit the practice of sending
electronic communications that disguise or conceal the identity
of the sender.
At page 99, replace Register.com with EF Cultural Travel v. Zefer
Corp. (1st Cir. 2003). The text is available here.
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