Verizon is reportedly stepping up the battle against sms spammers.  It filed another lawsuit in the District of New Jersey.  (Access a .pdf version of the Complaint here.)  I’m not sure what to think of the claims.  It’s likely Verizon will obtain default judgments against one or more non-appearing parties.  It may also outspend and/or outlitigate other smaller defendants.  But at the end of the day, it’s apparent from looking at the complaint that the current laws are not well suited to regulate unsolicited electronic communications.

Verizon brought the following claims:  (1) Computer Fraud and Abuse Act; (2) Telephone Consumer Protection Act; (3) New Jersey’s Computer Fraud and Abuse Act; (4) invasion of privacy; (5) tresspass; (6) tresspass to chattels; and (7) conversion (there are also separate claims for aiding and abetting but those are just derivative of the main claims).  I notice one statute missing from that list and it’s CAN-SPAM.  Understandably so, since CAN-SPAM may not apply to text messages.  How about the Computer Fraud and Abuse Act?  The CFAA was the favorite tool of companies like AOL, prior to enactement of CAN-SPAM.

The CFAA does not necessarily apply to unsolicited commercial email messages.  The cases construing the CFAA generally find liability based on conduct such as (1) releasing harmful computer programs such as a worm into a network (e.g., United States v. Lloyd, 269 F.3d 228 (3rd Cir. 2001)); (2) conventional hacking (YourNetDating, LLC v. Mitchell, 88 F. Supp. 2d 870 (N.D. Ill. 2000)); (3) scraping (EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001)); or (4) harvesting information (America Online v. LCGM, Inc., 46 F. Supp. 2d 444 (E.D. Va. 1998)).  Absent any of this conduct, no published decision has interpreted the CFAA to prohibit the transmission of e-mail messages from non-ISP provided e-mail accounts to an ISP's customers.  As iterated by one court prior to CAN-SPAM:

[r]ealistically, no federal statute currently exists which would prohibit a non-AOL member from sending UBE to any number of AOL members' e-mail addresses, without ever accessing [AOL's network] directly. 

America Online, Inc. v. National Health Care Discount, Inc., 121 F. Supp. 2d 1255, 1275 (N.D. Iowa 2000).  It’s unlikely that the CFAA applies to the conduct in question, barring some evidence of hacking or similar activity.  

The TCPA claims may be similarly suspect.  While there is authority supporting a claim under the TCPA based on unsolicited text messaging, state courts are generally thoughts to have exclusive jurisdiction over private causes of action under the TCPA.  (See here, noting a minority Seventh Circuit decision to the contrary.) 

The remaining claims are typical ancillary state law claims brought by anti-spam plaintiffs.  Like the CFAA claims they do not comfortably encompass spamming (much less sms spam).  Barring viability of the federal claims, the lawsuit probably belongs in state court.  Then again, no one is likely to raise this issue.