ESPASMS

Litigation Preparation

Step One: Determine the law in your jurisdiction


In 2003, in an effort to address the growing epidemic of spam email, Congress enacted the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003", or the CAN-SPAM Act. Many people feel the act was appropriately named, because it basically says that individuals and business can send spam legally, but it does set certain restrictions on spammers regarding the content of their UCE, or Unsolicited Commercial Email. However, many people feel that the act does not go far enough to protect individual citizens from spam. For example: it does not provide for a legal remedy to individuals who are the victims of spammers. Some people even argue that the CAN-SPAM act is unconstitutional!

In part due to this defect in the CAN-SPAM act, several states have enacted their own legislation regulating and/or restricting spam. A favorite defense of spammers who are sued in state courts is to argue that the CAN-SPAM act preempts any state's attempt to regulate spam, but that debate is still being argued in both state and federal courts throughout the United States. In general, courts are deciding that CAN-SPAM does preempt state laws that proclaim an absolute prohibition on spam, but does not preempt state laws to the extent that they prohibit falsity or deception in spam, meaning that spammers who try to deceive recipients are subject to the stricter state regulations.

Go to www.spamlaws.com to find out if your state regulates unsolicited commercial email. If your state does not have a law regarding UCE, then you will need to write to your legislator and lobby for one. If your state does have a law protecting you, and you have received UCE in violation of that law, then go on to Step Two, where we will explain how to collect the evidence you will need. Later, in Step Three, we will show you how to determine what constitutes falsity and deception in an email message.


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