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Spam law a matter of fax?

Antispam advocates see promise in a federal junk fax law, but some experts call the spam-fax connection far-fetched.

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

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"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."