July 29, 2008
On July 17, 2008, Washington, D.C. Mayor Adrian Fenty signed legislation that would prohibit unsolicited commercial e-mail, commonly known as "spam." Although forty states as well as the federal government already regulate spam, spam has increased to the point that it now constitutes roughly 80% of all email traffic. The new D.C. law, known as the "Spam Deterrence Act of 2008," is part of a growing attempt to curb this trend by expanding enforcement capacity beyond State Attorneys General offices and arming spam recipients with a private right of action against spammers. As in the majority of states to have enacted anti-spam laws, the D.C. law allows residents to act as private attorneys-general in bringing civil suits against violators.
While many state anti-spam statutes allow spam recipients to recover liquidated damages, D.C.’s Spam Deterrence Act is more generous than most. Other states typically allow plaintiffs to elect to receive $10 per violation (sometimes up to a $25,000 cap) in lieu of actual damages. D.C., in contrast, would now award the lesser of $500 per e-mail or $50,000 per day in addition to any actual damages plaintiffs may have sustained. In other words, the recipient of even a few spam messages would still be able to recover thousands of dollars in court. There is a slightly different scheme for e-mail service providers, who may elect to recover the lesser of $100 per email or $500,000 per day. Because violators are obligated to pay all litigation costs, both providers as well as individual spam recipients have every incentive to file suit.
The D.C. Spam Deterrence Act defines a prohibited e-mail as one that either: (1) falsely identifies mail transmission information, including header information, or other routing information; or (2) uses a third party’s internet address, domain name, or identity without the third party’s consent for the purpose of deceiving the recipient. These prohibitions apply to any person or organization that transmits or assists in the transmission of an email:
Federal law does not appear to preempt the D.C. Spam Deterrence Act’s substantive provisions. While the CAN-SPAM Act preempts most state regulation of e-mail traffic, section 8(b)(1) expressly excepts any law that prohibits false or deceptive information. Because the D.C. law restricts its scope to precisely such emails, it almost certainly avoids conflict with substantive federal law. It remains unclear whether the CAN-SPAM Act, which limits enforcement to the FTC, would preempt the D.C. law’s private enforcement provisions.
Under federal law governing the District Council’s legislative process, the signed bill is now subject to a pro forma thirty-day period of Congressional review before it will take effect.
You can view the full text of the Spam Deterrence Act at the following internet address:
Gibson, Dunn & Crutcher’s Intellectual Property Practice Group is available to assist in addressing any questions you may have regarding this issue. Please contact the Gibson Dunn attorney with whom you work or Terence P. Ross (202-955-8664, firstname.lastname@example.org in the firm’s Washington, D.C. office.
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