Circumventing the CAN-SPAM Act

New Jersey Law Journal March 5, 2004 Copyright 2004 ALM Properties, Inc.

HEADLINE: Lawfully Circumventing the CAN-SPAM Act;

While the act clearly regulates e-mail - and the spam that goes with it - it does not address other forms of Internet communications

BYLINE: By Jonathan Bick; Bick is of counsel to WolfBlock Brach Eichler of Roseland and is an adjunct professor of Internet law at Pace Law School and Rutgers Law School. He is also the author of 101 Things You Need To Know About Internet Law [Random House 2000].


Internet communications can involve reading Web pages, e-mailing, participating in an online chat room and instant messaging, to give just a few examples. The fact that these communications have different identities, features and functions has momentous legal significance for the application of Internet statutes in general and the CAN-SPAM Act in particular. The use of instant messaging circumvents the act since it only regulates e-mail spam.

The general perception has been that the act regulates spam. In fact, it has only regulated e-mail related spam. Under the act, junk e-mail is treated like junk postal mail, until the recipient takes action to unsubscribe. The act makes it a punishable offense to knowingly transmit certain e-mail messages.

More specifically, the act defines the phrase "commercial electronic mail message" to mean any e-mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service -- including content on an Internet Web site operated for a commercial purpose.

The act defines the term "electronic mail message" to mean a message sent to a unique e-mail address, and the term "electronic mail address" to mean a destination, commonly expressed as a string of characters, consisting of a unique user mailbox and a reference to an Internet domain. As a result, the CAN-SPAM Act clearly regulates e-mail but not other forms of Internet communication.

To reach this conclusion, one need only examine the various forms of Internet communications. These communications can be compared by examining their characteristics, such as the spontaneity, exclusivity and interactivity of the communication. For example, instant messaging and chatting are both relatively spontaneous, like a phone call. Also, both e-mail and instant messaging can be relatively exclusive, like a letter.

For the purposes of the CAN-SPAM Act, it is most important to determine if both e-mails and instant messages are similar enough forms of Internet communication as to be treated alike. Each requires computers to create and store content in digital form and each uses the Internet to accomplish a communication task. As this definition implies, both e-mails and instant messages may be found in several states of completion: in the sender's computer; within an intermediary's computer [such as an Internet back bone server]; or in the recipient's computer.

Therefore, both e-mails and instant messages rely upon information databases, operating systems, applications programs and other information, including instructions residing in computer memory. Consequently, some people treat e-mail as instant messaging and vice-versa. However, a more detailed exploration of e-mail and instant messaging highlights the existence of the major differences between the two.

E-mail and Instant Messaging

E-mail and instant messaging differ in several significant functions, features and form. Instant messaging allows a user the ability to easily see whether a chosen friend or co-worker is connected to the Internet and, if they are, to exchange messages with them. Instant messaging differs from ordinary e-mail in the immediacy of the message exchange and also makes a continued exchange simpler than sending e-mail back and forth. Most exchanges are text-only. However, some services, such as AOL, allow voice messaging and file sharing.

Such functional differences have been noted in court. For example, the court in In re Aimster Copyright Litig., 2002 WL 31006142, [N.D. Ill. Sept. 4, 2002], found that instant messaging allowed users to benefit from functions not available to e-mails. In particular, instant messaging users could instantly establish if a potential recipient of his or her communication was accessible to receive an instant message.

One primary dissimilarity between instant messaging and e-mail is that instant messages, because of the convenience and ease of electronically transferring and storing information, is often easier to obtain than e-mail.

To illustrate this point, imagine a situation involving employees faced with relaying information to third co-worker. Assume that employee A chooses to send his communication via an instant message and worker B chooses to send his communication through e-mail. One major difference that can be noted right away between the two modes of communication is that employee B might word his e-mail in a different manner than employee A would word his instant message.

While instant message transmissions are virtually instantaneous, sending an e-mail is a good deal slower in process and delivery; as a result, the extra time involved in writing and sending an e-mail leaves employee B more time for thought and reconsideration of the content. Consequently, instant messages are far more likely to contain "uncensored" or "off-the-cuff" remarks that a writer may not include in an e-mail. In all actuality, the extra effort required to write an e-mail often means that employee B might not even take the time to send his correspondence. This means that if not for instant messaging, many communications would simply never happen.

A second major difference between e-mail messages and instant messages lies in the availability of the message content. For example, assume that a person transmits a communication to his or her supervisor. If the employee chooses to put his or her thoughts in an e-mail and that transmission is needed at a later time for use at trial, several problems immediately arise.

First, the supervisor would have to keep the e-mail. Second, if the supervisor did keep the e-mail, he or she would then have to remember having received the e-mail. Third, the supervisor would have to remember where he stored the e-mail. If all of this occurs, an additional problem arises in that the supervisor would then have the liberty to decide whether he or she wanted the e-mail to be located, or whether the destruction of the hard drive containing the e-mail was a more appropriate action.

As can be seen, sometimes several obstacles lie in the way of a party wishing to discover e-mail records.

On the other hand, the destruction or misplacement of an instant message is much more difficult, making instant messages more readily available for trial. For example, communications sent via instant messaging systems are ordinarily routed through a single third-party computer system, whereas e-mails may use many different third-party systems or, in the case of e-mails within a firm, never leave the office system.

Consequently, a third-party instant messaging computer system or back-up system could store and save all the instant messages passing through it, while e-mails may be stored in a multitude of diverse third-party processors. This means that in the case of instant messages, a simple search of the third-party system could turn up all related material.

Further, deleting an instant message is not equivalent to deleting an e-mail. Instant messaging systems route all messages through a dispatch system which, by necessity, records transactions. When an instant message, is "deleted," the documentation of the transaction still exists in the transition system computer, which records transactions. Once an e-mail has been "deleted," generally no dispatch copy exists, because e-mail programs do not require a dispatch system.

Still another difference in form between e-mail and instant message communications lies in the content of each type of medium and how data is stored electronically. In particular, e-mail electronic data will not include all the information held in the computer memory as part of the electronic document. While e-mail electronic data normally contain distribution lists, acknowledgements of receipts and similar materials, instant messages contain such information and more.

In particular, consider the identity and time stamp prepared by an e-mail sender for e-mail messages. Such information is easily manipulated, such as by intentionally starting up the sender's computer with an erroneous date and time. Thus, a reader of the electronic data associated with an e-mail may not be able to glean from the e-mail such basic facts as who sent or received a particular message or when it was received. Instant messages use the identity and time stamp of the instant messaging service. Such information is normally impossible for the sender to manipulate. Additionally, instant messages often contain vital information that is not present in e-mail records.

Excited Utterance?

Due to the distinction in function and form between e-mails and instant messages, the courts have apparently indicated that they are willing to treat e-mail and instant messaging differently. Consider Federal Rule of Evidence 803[2], which states that an otherwise inadmissible hearsay statement is admissible into evidence if it relates to a "startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." In United States v. Ferber, 966 F. Supp. 90, 92 [D. Mass. 1997], the prosecution offered an e-mail under this exception, noting the immediacy with which the employee composed the e-mail after his conversation with Farber.

The Massachusetts Federal District Court, however, refused to admit the e-mail under this exception, reasoning that the detail, the length and the possibility that the employee spoke to his supervisor before he wrote it suggest that the employee had time to reflect and/or fabricate. Although the court in this instance excluded the e-mail from evidence under the excited utterance exception, it did not rule out the possibility that other forms of electronic communications that are more in conformity with the requirements of the excited utterance exception [such as instant messaging] could be admissible.

The Ferber decision suggests that a short e-mail containing little detail and using excited language might qualify as an excited utterance, while an instant message with the same content would be even more likely to qualify. With the rise of instant messaging, the excited utterance exception may become a useful hearsay exception for the admission of electronic communication.

In addition to authoritative definitions and court findings, the workplace, libraries and recent statutes provide excellent evidence of the fact that e-mail and instant messaging are different.

A typical employee handbook will differentiate between an employee's use of e-mail and real-time conferencing features such as instant messaging. Additionally, standard library Internet policies prohibit e-mail and instant messaging separately as activities that fall outside the scope of traditional library services. And the Domestic Security Enhancement Act of 2003 specifically enumerates e-mail and instant messaging as separate forms of communications.

It is generally accepted that the CAN-SPAM Act does not outlaw all unsolicited e-mail. It is less well known that it does not address certain Internet communications that contain the electronic equivalent of junk postal mail. Businesses are permitted to send unsolicited e-mail to anyone under certain conditions, including the use of proper identification, headers and compliance with consumer requests [to cease sending them unsolicited commercial e-mail].

The limitations on e-mails do not apply to other forms of Internet communications that may also deliver spam. Thus, even if the act is completely effective, it will likely only change the delivery system, not the content or the quantity of unwanted electronic messages.