New Jersey Law Journal Volume 184, No. 6, Index 389

May 8, 2006

SPAMMERS ADAPT AND PERSEVERE - 'DUAL USE' SPAM CIRCUMVENTS LEGISLATIVE AND TECHNOLOGICAL RESTRICTIONS

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].

 Both legal and business barriers prevent the use of unsolicited commercial e-mail, or spam. The legal barriers are clear cut. In particular, compliance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, CAN-SPAM Act of 2003, 15 USC 7701, will ensure the reduction or elimination of legal difficulties associated with spam. However, businesses such as Internet Service providers (ISPs) with finite computer resources may attempt to limit spam through the use of self-help technological means. One such self-help remedy is the use of spam traps to lawfully deny spammers access to the Internet. Spammers, however, employ dual use spam to circumvent the ISP's self-help remedy.

 'Dual use' spam is defined as unsolicited e-mail, sent indiscriminately to multiple mailing lists, individuals or groups e-mail, whose content is typically noncommercial, but can be used indirectly to assist spammers. For example, a spammer who would like to identify spam traps might send a mass e-mailing to raise money for the Red Cross. As noncommercial unsolicited e-mail, it is both lawful and unregulated by the CAN-SPAM Act. After raising money for the Red Cross, subsequently, a spammer uses the resulting responses to improve his commercial spam target list. This use violates neither the CAN-SPAM Act nor the Federal Trade Commission's subsequent CAN-SPAM regulations, including the rule for the determination of the primary purpose of an e-mail for CAN-SPAM purposes.

 The CAN-SPAM Act was enacted to eliminate unsolicited bulk e-mail advertisements. The act provides for up to $2 million in fines and prison terms for fraudulent header information, such as false reply addresses or misleading subject lines. In some cases, involving substantial violations, the fines may be trebled up to $6 million.

 The CAN-SPAM Act, which took effect Jan. 1, 2004, required the FTC to issue regulations 'defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message.' The FTC's rule with respect to spam clearly stated that the FTC does not intend to regulate noncommercial speech through the rule and implemented this finding in its 'primary purpose' criteria.

 The final rule sets forth criteria for determining the primary purpose of various kinds of e-mail messages. These criteria include:

   • For e-mail messages that contain only the commercial advertisement or promotion of a commercial product or service ('commercial content'), the primary purpose of the message will be deemed to be commercial;

   • For e-mail messages that contain both commercial content and content that is neither 'commercial' nor 'transactional or relationship,' the primary purpose of the message will be deemed to be commercial if either: 1) a recipient reasonably interpreting the subject line of the message would likely conclude that the message contains commercial content; or 2) a recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is commercial. Factors relevant to this interpretation include the placement of commercial content in whole or in substantial part at the beginning of the body of the message; the proportion of the message dedicated to commercial content; and how color, graphics, type size and style are used to highlight commercial content; and

   • For e-mail messages that contain only noncommercial content, the message will be deemed to have a noncommercial primary purpose.

 The CAN-SPAM Act only regulates commercial e-mail, not noncommercial e-mail such as charitable or political solicitations. In particular, commercial e-mail is generally intended to sell a product or service in exchange for a fee. Thus, commercial e-mail is a form of commercial speech that relates to the economic interests of the speaker and its audience. Courts do not protect commercial speech to the same degree as political solicitation, which is a form of political speech.

 The CAN-SPAM Act limits who may take action against a spammer. Consequently, technical solutions have also been employed by business, such as spam traps.

 A spam trap is a valid but unsubscribed domain or e-mail address. All the e-mail sent to such domains or e-mail addresses by definition must be unsolicited, and those which are commercial in nature are spam. While spam may be lawful if it complies with the CAN-SPAM Act, even lawful spam may be barred by a private entity such as an ISP, according to Cyber Promotions, Inc. v America Online, Inc., 948 F. Supp. 436 (E.D. Pa. 1996).

 Spam traps have practical, as well as theoretical, similarity -- they all must be publicized somewhere. Common sources for spam traps are addresses that were once used but have had a period of invalidity.

 When a spammer's e-mail is sent to a spam trap, it may directly or indirectly result in blockage of the spammer's ISP. Thus, spammers regularly employ maintenance practices designed to prevent sending e-mail to spam traps. Employing dual use spam may result in information coincidentally useful for one such maintenance method. In particular, if a dual use mass mailing is sent, a spammer may employ software which will signal if the e-mail sent to a particular address was opened. If opened, then it is mostly subscribed, and hence will not automatically be unsolicited.

 The Supreme Court has addressed the question of dual use with respect to the issues of technologies. In particular, the Court considered technologies that are capable of being used for both unlawful (infringing) and lawful (noninfringing) purposes. For example, 'peer to peer' (P2P) software and networks are examples of dual-use technology that regularly result in secondary liability doctrines claims.

 In the P2P context, courts have crafted a doctrine consistent with Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417 (1984), which involved the video cassette recorder (VCR) that can be used for both infringing and noninfringing purposes.

 The Supreme Court said in Sony that copyright's secondary liability doctrines do not allow the imposition of liability upon someone who designs and manufacturers a video cassette recorder (or any other kind of copying equipment) as long as the equipment is at least capable of commercially significant noninfringing use. It is generally understood that if a product is capable of commercially significant noninfringing use, it may be lawfully distributed as a matter of copyright law.

 The courts in A&M Records v. Napster, Inc., 239 F.3d 1004, 1019 (9th Cir. 2001) and In re Aimster Copyright Litig., 334 F.3d 643 (7th Cir. 2003), employed what could be called creative reinterpretations of the Supreme Court's Sony test. The Napster and Aimster courts employed the Sony test to determine the legality of the defendants' file sharing, or P2P networks. The courts rejected the defendants' argument that because their file sharing had a legitimate use, the technology was legal. The courts found that the defendants' purposely slanted the technology's use toward the copyright-infringing purpose. The courts' implementation of the dual purpose test in these cases suggests that when balancing effective protection with the development of every technology, technology should prevail.

 It may be argued that unsolicited e-mail, sent indiscriminately to multiple mailing lists, individuals or newsgroups is not 'dual use.' Some argue that all e-mail, including e-mail with potentially dual uses, should be classified on its actual use. Under this reasoning, unsolicited e-mail classification should focus on the use rather than on the content of the unsolicited e-mail itself. Applying this argument to the example of a spammer who sends mass e-mail solicitations for the Red Cross, the spammer's use of a deceptive subject line would violate the CAN-SPAM Act.

 Under the common law theory of fraud and trademark infringement, if a spammer sends a mass e-mail solicitation for the Red Cross for the sole intent of detecting spam traps, such an e-mailing would be unlawful. Such deceptive use of a mass e-mailing would be unlawful on several additional state and federal grounds.

 However, if a spammer sends a mass e-mail solicitation for the Red Cross with the intent of raising money for the Red Cross, such an e-mailing would be lawful. The use of the results of such a mass e-mailing for commercial e-mailing purposes, such as detecting spam traps, is not outlawed by the CAN-SPAM Act nor by the FTC's spam-related primary purpose Rule. Nor has any state law specifically made such use unlawful. Consequently, dual purpose e-mail is lawful, if it lacks fraudulent intent.