"The CAN-SPAM Act became effective on January 1, 2004, and was enacted in response to mounting concerns associated with the rapid growth of spam e-mails." Gordon v. Virtumundo, Inc. (9th Cir. August 6, 2009), at 10,491. In Gordon, the Ninth Circuit was called upon, in a case of first impression amongst the Circuits, to determine when a private plaintiff possesses standing to sue under the CAN-SPAM Act. In doing so, the Ninth Circuit attempted, at least in part, to thoroughly examine the standing issue:
As recognized by several courts, the case law regarding the relevant legal standards under the CAN-SPAM Act is “scant,” ASIS Internet Servs. v. Optin Global, Inc., No. 05-05124, 2008 WL 1902217, at *15 (N.D. Cal. Apr. 29, 2008), and few courts have construed the standing provision, ASIS Internet Servs. v. Active Response Group, No. 07-6211, 2008 WL 2952809, at *2 (N.D. Cal. July 30, 2008). Neither we nor any of our sister circuits have comprehensively addressed this issue. We endeavor to do so here, at least in part.
Slip op., at 10,494. One important question in Gordon was whether the plaintiff, who provided e-mail addresses to some friends and family members through a domain housed on leased server space. The Ninth Circuit described the basic standing inquiry:
We begin by acknowledging that the CAN-SPAM standing inquiry involves two general components: (1) whether the plaintiff is an “Internet access service” provider (“IAS provider”), and (2) whether the plaintiff was “adversely affected by” statutory violations. See, e.g., Brosnan v. Alki Mortgage, LLC, No. 07-4339, 2008 WL 413732, at *1-*2 (N.D. Cal. Feb. 13, 2008). Beyond that, however, the statutory standing provision read as a whole is ambiguous—a point upon which all parties agree. We therefore employ familiar techniques of statutory construction to evaluate Congress’s intent with regard to both components and their relation to one another.
Slip op., at 10,494. The Ninth Circuit then noted that the standing conferred by the Act was narrowly tailored by Congress:
Congress conferred standing only on a narrow group of possible plaintiffs: the Federal Trade Commission, certain state and federal agencies, state attorneys general, and IAS providers adversely affected by violations of the CANSPAM Act. See 15 U.S.C. § 7706(a), (b), (f), (g). The decision to restrict the right of action does not reflect an indifference or insensitivity to the effects of spam on consumers. The contrary is true. The CAN-SPAM Act’s express findings and legislative history are littered with references to the burdens shouldered by individuals, businesses, and other institutions. The Act itself recognizes the “costs to recipients . . . for the storage of [unsolicited commercial e-mail], or for the time spent accessing, reviewing, and discarding such mail, or both.” 15 U.S.C. § 7701(a)(3). We surmise that Congress’s intent was to limit enforcement actions to those best suited to detect, investigate, and, if appropriate, prosecute violations of the CAN-SPAM Act—those well-equipped to efficiently and effectively pursue legal actions against persons engaged in unlawful practices and enforce federal law for the benefit of all consumers.
Slip op., at 10,496. Then Ninth Circuit then had to address whether Gordon was, in fact, an IAS provider. Struggling somewhat with that question, the Court said:
There may well be a technical or hardware component implicit in the definition. But, we find the parties’ briefing on the topic inadequate to reach an informed decision here. Because it is not necessary to our holding, we decline this opportunity to set forth a general test or define the outer bounds of what it means to be a provider of “Internet access service.”
Slip op., at 10,500. Despite passing on the opportunity to define the outer bounds of IAS provision, the Ninth Circuit concluded that Gordon, who gave e-mail addresses to a few friends and family members, didn't meet any reasonable definition of IAS provider.
At this point, Gordon loses, because he lacks standing. But the Ninth Circuit went on to address whether he had been adversely affected by the spam received in the various e-mail accounts he created. That analysis, too, didn't favor plaintiff.
I was particularly interested in this decision because I, like Gordon, have a domain through which I provide a number of e-mail addresses to family. Had things broken Gordon's way, I'd be an IAS provider right now. But since I'm not, I'll also conclude that we won't see the CAN-SPAM Act in a class action unless a major provider like a cable or phone company decides to use the CAN-SPAM Act in some crazy way and allege a defendant class of spammers blasting their network.
The Ninth Circuit concluded its opinion with a thorough analysis of pre-emption, holding that the CAN-SPAM Act pre-empts all state efforts to regulate spam, save those predicated upon traditional tort theories related to fraud and deceit. In case you were holding your breath, spam isn't going anywhere any time soon.
