* One way the CAN-SPAM Act could be misused
Last week, a New Jersey man was arrested by the FBI for aiming a laser at an aircraft. He is being charged under the Patriot Act, a law which was specifically written to prosecute terrorists, even though the federal government promised that the Act would never be used to prosecute anyone but terrorists. The FBI even admits that the laser-wielding amateur astronomer is not a terrorist.
Now let me say up front that I strongly object to anyone shining a laser at an aircraft, and I believe that the man who did so should be prosecuted under whatever laws exist outside of those designed to thwart terrorism. However, his situation got me thinking about ways in which the CAN-SPAM Act might end up being misapplied in the future.
For example, a late amendment to the Act allows the government to prosecute companies promoted in spam, even if those companies did not send or authorize the sending of spam on their behalf. Section 6(a) of the Act says that vendors of products or services can be prosecuted even if they “should have known” that their offerings were advertised through spam and if they received an economic benefit as a result.
So if Big Bob’s SoftWareHouse is selling Vendor A’s software through spam, could that vendor be sued under the CAN-SPAM Act? If the vendor knew about the spam and “took no reasonable action to prevent the transmission, or to detect the transmission and report it to the Commission,” my reading of section 6(a) of the Act leads me to believe that they could be prosecuted even though they had nothing to do with the creation or transmission of any spam that violates section 5(a)(1) of the Act.
Personally, I believe that the CAN-SPAM Act is a pretty good idea, if not a very effective one thus far. However, I wonder if this well-intentioned act might eventually be used by an overzealous prosecutor in ways that were never intended by Congress. I’d appreciate hearing your thoughts on this issue – please drop me a line at mailto:michael@ostermanresearch.com
