Facebook and the State of Washington Join Forces in Fighting Online Spam

Photo titled "Dislike" by Charlotte Road on Flickr

For the first time since the enactment of the federal CAN-SPAM Act, a state government and a private company joined forces in protecting consumers from spammers/scammers. On January 26, 2012, Facebook and the State of Washington filed two separate lawsuits against internet marketing company Adscend Media, alleging violations of the anti-spam law. Specifically, they claimed that Adscend Media tricked Facebook users into clicking deceptive links that appeared as recommendations from their friends. These deceptive links led users to disclose their personal information, direct them to advertising sites, and continued the cycle of spreading spam to their friends.

The CAN-SPAM Act was enacted by Congress in 2003, aiming to protect consumers from unsolicited commercial email. It requires that all commercial electronic mail must clearly and conspicuously identify the message as an ad in the subject line, clearly and conspicuously disclose to the recipient an opt-out right to not receive future emails in the text body, and cease transmission of commercial emails within 10 days of recipient of the opt-out request. The Act also establishes tough penalties of up to $16,000 for each separate email, it also grants the government and private parties the right to bring civil and criminal action against violators.

The Act covers all commercial messages, defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” Courts have interpreted “electronic mail message” broadly, reasoning that such a broad interpretation is consistent with Congress’ intent to curtail the number of misleading commercial messages that overburden the infrastructure of the internet. In Myspace v. Wallace and Myspace v. the Globe.com, Inc., the Central District Court of California defined an electronic mail message as a message deliverable to a unique electronic mail address. An electronic mail address is a form of electronic communications, including a traditional email address, inbox, and other alternative forms. A message posted on a Facebook wall, news feed, or home page is an electronic mail message.

The Act grants a limited right to a private party (namely internet access service providers) to bring a civil action against alleged offenders in federal court. In order to have standing to bring such action, an internet access service provider must show an adverse effect by the violation of the Act. “An adverse effect” can be a very high standard in some jurisdictions, requiring an actual harm from specific messages, rather than a general harm from receiving messages. Despite the limited private right and high standard of proving an adverse effect, more and more private entities enjoy the success against spammers. For example, Facebook has been awarded millions of dollars in judgments under the CAN-SPAM Act since 2008, including a $873.3 million judgment against a Canadian-based site for illegally using Facebook user’s log-in information to distribute spam, and a $711 million judgment against “spam king” Sanford Wallace for fraudulently gaining access to Facebook accounts and using them to send spam throughout the Facebook network.

States have the right to bring a civil action on behalf of their residents if they reasonably believe that the interests of their residents has been or is threatened or adversely affected by commercial email senders. States can either seek to enjoin future violations, or recover monetary damage. The bar for the later is much higher than the former. A state must prove that an alleged offender had actual or implied knowledge for the alleged unlawful conduct in order to recover monetary damage which is not required in an enjoinment action.

In the current joint action against Adscend Media, it is likely that both Facebook and the State of Washington have a good chance of winning. Under the broad interpretations promulgated by the courts, messages Adscend Media sent to Facebook users were electronic messages because they reached destinations receivable by Facebook users. These messages were fraudulent, as they were not recommended by Facebook users’ friends as their outward appearance would suggest. The messages were deceptive and intended to direct unsuspecting Facebook users to third party commercial sites so as to obtain the user’s personal information. Facebook suffered damages because its rights were violated. The interests of citizens of Washington State were compromised because they were tricked into disclosing personal information and pay for unwanted subscription services through spam. Adscend Media’s alleged unlawful conduct is not likely unintentional, if their actual or implied knowledge can be proven. It is not only likely to pay damages to Facebook, but also to Facebook’s users in the Washington.