another spam query - a few pointers/corrections...

[Dave Farber <dave () farber net>]

-----Original Message-----
From: "Anne P. Mitchell, Esq." <amitchell () isipp com>
Date: Sun, 04 Jan 2004 19:34:07 
To:dave () farber net
Subject: Re: [IP] another spam query - a few pointers/corrections...

Dave (et al - please feel free to post),

Ethan wrote:

> > -Your 2nd question included 2 examples of a number of different
> > possible combinations of off-shore and US companies and where they
> > ship to/from, where they are based, where they send spam from/to,
> > etc. That question addresses the jurisdiction and scope of US law,
> > and is a thorny legal issue - one that can be refined much more than
> > this, and I suspect other attorneys could comment on further - BUT a
> > simple explanation I find useful is: The law applies to anyone
> > sending commercial email TO a U.S. recipient AND/OR anyone sending
> > spam originating FROM the U.S.

Actually the original question went to the culpability and liability 
of a U.S. merchant using the services of a spammer, even if the 
spammer is based outside of the U.S.  The key point here is that the 
*merchant* is U.S.-based, and under the McCain amendment section of 
CAN-SPAM (on which I worked, which is why I know this part cold), the 
merchant *themself* will absolutely be liable - that section holds 
responsible any U.S. merchant who uses the services of someone whose 
mailing "services" are themselves in violation of CAN-SPAM - there is 
no issue of jurisdiction, as it is a U.S. merchant, who is directly 
liable under that portion of the act.  Not unlike other theories of 
contributory and/or vicarious liability.


> > -Finally, there are several summaries of various versions of the
> > CAN-SPAM law on the web that also answer some of these types of
> > questions, including: http://www.cdt.org/publications/pp_9.23.shtml
> > www.paulruschmann.com/research/spam/can_spam.pdf
> > http://www.politechbot.com/pipermail/politech/2003-October/000127.htm

Also http://www.isipp.com/fedlaw.php

See also http://www.isipp.com/events.php for those interested in our 
Spam and the Law conference towards the end of this month, for those 
gluttons who can't get enough of this stuff. 

Anne

Anne P. Mitchell, Esq.
President/CEO
Institute for Spam & Internet Public Policy
Professor of Law, Lincoln Law School of SJ



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