Silence of the Spam: Improving the CAN-SPAM Act by Including an Expanded Private Cause of Action

Silence of the Spam: Improving the CAN-SPAM Act by Including an Expanded Private Cause of Action

David J. Rutenberg · 14 Vand. J. Ent. & Tech. L. 225

Abstract

In the last decade, email spam has become more than just an annoyance for email users. Unsolicited messages now comprise more than 95 percent of all email sent worldwide. This costs US businesses billions of dollars in lost productivity each year. The US Congress passed the CAN-SPAM Act of 2003 to regulate the spam industry. Unfortunately, data show that spam only increased since the Act’s passage. Part of the reason for this failure is that the Act only authorizes the Federal Trade Commission, state attorneys general, and Internet Service Providers to bring action under its provisions. Each of these authorized entities either lacks the incentive or the resources to adequately enforce the Act, resulting in little to no reduction of spam. As a result, email recipients—not spammers—bear the cost of spam. This Note argues that the Act should incorporate an expanded private cause of action for email recipients, thereby increasing the enforcement level. This will deter spam prospectively by shifting the cost of unsolicited email from the recipient onto the sender.