The U.S. Dist. Court in Washington State has dismissed a CAN-SPAM Act case on the basis that the plaintiff suffered damages that were more like those typically experienced by consumers, rather than those experienced by ISP's.  At issue in Gordon v. Virtumundo was whether the plaintiff was an "internet access service" that was "adversely affected" by the subject spam.  Noting that the plaintiff had not suffered the ISP or IAS specific types of burdens described by Congress (such as harm related to bandwidth, hardware, Internet connectivity, network integrity, overhead costs, fees, staffing and equipment costs), the court concluded that although the statutory definition of an IAS is very broad, the nuisance/consumer type damages alleged were not the type required to be suffered in order to have standing under CAN-SPAM. 

According to the opinion, the limited private action under CAN-SPAM is to provide a remedy to true ISP's that have to hire extra resources, provide more bandwidth, and generally incur other direct damages as a result of the volume of spam they handle, not to provide consumers with a cause of action.  The decision also held that the state law claims in the case were pre-empted.   The case is James S. Gordon et al. v. Virtumundo, Inc., et. al., Case No. 06-0204-JCC.

Photo courtesy of Robyn Lee under Creative Commons.