What's Next For CAN-SPAM?

Tuesday, September 1, 2009 - 01:00

No other area of the law moves faster than anything connected to the Internet, e-commerce and digital communications. It's especially complicated because, being new and ever changing, there may be little or no precedent upon which to draw.

"This is an area where the business models and technology change very rapidly and as a consequence the legal principles often change as well," said Ian Ballon, author of E-Commerce & Internet Law: Treatise with Forms, 2d , published by West. Ballon is a shareholder in the Intellectual Property litigation group of Greenberg Traurig LLP.

One of the key areas in the current digital realm concerns e-mail marketing by companies and the application of the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act.

Ballon has written extensively about CAN-SPAM in his treatise and in another of his titles published by West, The Complete CAN-SPAM Act Practice Guide, 2008-2009 ed. He also won the largest damages award ever granted under CAN-SPAM in MySpace, Inc. v. Wallace in 2008, with a judgment of over $230 million.

"The issues with CAN-SPAM are more numerous than perhaps some companies understand," Ballon said.

Corporate counsel need to pay particular attention to what the states are saying about unsolicited commercial e-mail, according to Ballon, because many states have become increasingly active in attempting to regulate it.

"What we've seen in the last couple of years is that several states have enacted statutes intending to fully occupy that narrow area created by Congress in defining CAN-SPAM," Ballon said. "What these states do is create private causes of action. Under the federal CAN-SPAM Act, the statute can only be enforced by the Federal Trade Commission, or by certain state officials, internet access services such as internet service providers, social networks and others."

Ballon says this is a very important trend to watch.

"Many companies feel that if they're able to wade through the hundreds of pages of regulations issued by the Federal Trade Commission and fully grasp the issues under the CAN-SPAM Act that they are fully insulated from liability," said Ballon. "In fact, because of these state laws, it is important for companies that are involved in lawful e-mail marketing to look beyond CAN-SPAM and look at the state laws."

Some of the state laws, Ballon says, are plainly preempted while others plainly are not. "A number of states have laws where there are open questions to what extent the laws have been preempted," said Ballon. "But because of the potential for private causes of action and indeed even class action suits brought by individuals who receive unsolicited e-mail, this is an area that is very important for lawyers to understand what the parameters are."

Ballon offers this advice for understanding CAN-SPAM or any legal issue involving the Internet and e-commerce gaining more prominence with every passing day.

"It's really not sufficient for practicing lawyers to simply be given a static sense of where the law is at a given moment in time," Ballon said. "It's really important for internet lawyers - in order to render useful advice to their clients - to understand the trends in the law, what the developments are and really more importantly what are going to be the important issues a year or two or three from now."

Ian Ballon's treatise, E-Commerce & Internet Law: Treatise with Forms, 2d, and his book The Complete CAN-SPAM Act Practice Guide, 2008-2009 ed ., are available on the West Web site at www.west.thomson.com.

For additional insight on the CAN-SPAM Act, internet law and e-commerce, the following Westlaw databases and publications also are available:

Internet Law and Practice (INTERNET)

Privacy and Information Law Report (GLPRINLR)

E-Commerce Law Report (GLECOMLR)

E-Commerce and Technology (HECTEC)

E-Commerce Law & Strategy (ECOMLS)

E-commerce Today (ECOMTODAY)