CAN-SPAM: Peacefire Wins on Standing in the Western District of Washington
Judge Lasnik of the Western District of Washington granted Peacefire's motion for summary judgment on standing on its CAN-SPAM claims. Access a copy of the order here [pdf]. (And an earlier order continuing the SJ motion here [pdf].)
Is Peacefire an Internet Access Service?
To back up, CAN-SPAM allows two different parties to bring suits. The government, and providers of "internet access services," who are adversely affected. There's been a ton of litigation around the definition of the term "internet access service," and whether it was used to mean ISP, something more or less? (Other posts talking about this issue here and here.) Defendant (Quicken) argued that Peacefire did not provide access to the internet and therefore was not an IAS. The court rejects this argument, noting that an IAS (for purposes of CAN-SPAM) can "enable access to content or information, rather than to the [i]nternet itself." The court cites to The Globe.com, Facebook v. ConnectU, and Gordon v. Virtumundo and easily concludes that Peacefire falls within CAN-SPAM's definition of an IAS.
Was Peacefire Adversely Affected?
In order to have standing, Peacefire also had to show that it was "adversely affected" - something which Gordon failed to do. [Note, Peacefire is represented by the same lawyers (or at least one of the same lawyers) who represented Gordon. You have to give credit where credit is due - that's showing tenacity!]
Defendant argued that Peacefire had to be harmed in its transmission (or re-transmission) of emails to its end users in order to be "adversely affected" under CAN-SPAM. The court rejects this argument, finding that
Plaintiffs have alleged that they have received violative electronic transmissions from defendant. Plaintiffs have also alleged that they suffered harms relating to the receipt of those transmissions. They contend that defendant's spam has reduced their network speeds, impaired their ability to notify new subscribers about new ways to access services, and required them to increase server and memory capacity.
The court finds that the plaintiffs adequately described "harms that affect them as an IAS and go beyond the spam-related harms experienced by all consumers and businesses." This showing distinguished Peacefire from the plaintiff in Gordon (and the one in Asis).
In some sense this case demonstrates the (likely) limited relevance of Gordon v. Virtumundo. Even an affirmance on the standing issue by the 9th Circuit (i.e., a finding that the court appropriately found that Gordon did not put forth sufficient proof that he was "adversely affected") will not do much to beat back plaintiffs such as this one who adequately plead "unique" spam-related harm. On the other hand, the 9th Circuit could come with some sweeping language that requires private CAN-SPAM to make a specific showing of harm?
The problem is that it's tough to find such a requirement in the statute. At the end of the day, the person who drafted the IAS/"adversely affected" language dropped the ball. The only way to fix that (my sense) is in the legislature.