Anne Mitchell's insider reply supporting Senate spam bill [sp]

[Declan McCullagh <declan () well com>]

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From: "Anne P. Mitchell, Esq." <amitchell () isipp com>
To: Declan McCullagh <declan () well com>
Date: Tue, 28 Oct 2003 12:40:14 -0800
MIME-Version: 1.0
Subject: Another Insider's Comments Re: [Politech] An insider's analysis of 
the Senate's anti-spam bill
Message-ID: <3F9E63AE.22551.5D57760@localhost>

Hi Declan!

Just a quick note - feel free to share it (no need for anonymity):

> The "3rd party" section, an amendment by Sen. McCain in committee,
> aims at companies who hire out spammers or separate themselves from
> spammers by shell corporations, but knowingly benefit nonetheless.

I worked with Sen. McCain's on the authoring of this bill - it being
not all that dissimilar from the contributory and vicarious liability
theories which I used against companies which were advertised in
trademark-infringing spam while I was at Habeas.  The advertiser
accountability amendment as written (and passed) requires that the
advertiser either knew, or should have known, that the sender was
using methods in violation of the law.  So, for example, the author
above used the example of Pfizer knowingly benefitting from spam
about their well known erectile dysfunction drug - liabilty would
only attach to Pfizer if they had actually *utilized* the services of
that spammer, or were somehow *actively* benefitting from it.  If
someone unbeknownst to Pfizer, and with whom Pfizer has no connection
at all, just started raving about how great the product was, in a
spam, Pfizer would not incur liability.

This amendment was specifically included to get at those companies
who advertise in spam, but manage to say "hey, it wasn't me who hit
'send'".

An equally important aspect of this clause is that it provides an
avenue to get at the offshore spammers - the vast majority of English-
language spam contains advertisements for merchants with a U.S.
connection, meaning that the merchant can be readily found and
prosecuted.  (Think about it - if they want to sell you something,
they need to tell you how to pay them - while the spammers are often
off-shore, the merchants almost always have *some* U.S. connection,
making legal action much simpler.)  Once you have the merchant, it's
much easier to find the spammer.  Also, merchants are going to think
twice about utilizing a spammer's services once they themselves are
on the hook, where before they were essentially immune.

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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