Court Ruling Makes Some Forms of Spam Legal

Written by Sue Walsh on August 19, 2011

A U.S. Appeals court has ruled that protesters may clog a company’s email system with spam and not run a foul of anti-spamming law.  Under the U.S. Fraud and Abuse Act, companies are protected from hacking, phishing, and related malicious activities but the court ruling says people are not legally prevented from using public communication device such as phones and email to protest a company’s action, even if that protest results in disruptions to that company.

The ruling came about after a union called LIUNA (Laborers’ International Union of North America) launched a protest against a Michigan-based company called Pulte Homes. The protest involved flooding the company with emails, so much so that their network just couldn’t handle the traffic and choked, resulting in their ability to do business being sharply curtailed. In short the spam flood acted like a DDoS attack. Pulte sued and won, but the Appeals court overturned the victory.

By the court’s account, the union’s actions did not constitute a malicious, illegal DoS-style hack, because the protesters weren’t, for example, surreptitiously and illegally attacking protected back-end infrastructure recognized as off limits to the outside world. Also, the emails didn’t constitute spam, either. Spam, under CAN-SPAM, constitutes unsolicited commercial messages and exempts “transactional or relationship messages.” By that definition, it’s legitimate for a person to send letters and make phone calls to a company to, say, complain about its business practices.

This is an interesting and potentially troubling ruling. What’s to keep a malicious group or individual from using it to intentionally harm a company? It may force companies to invest more deeply in their network and email systems – something that many may not be prepared to do in these tough economic times. We want to know what you think about this. Leave a comment with your thoughts!

Comments

Greg Watt August 19, 2011

I suppose it is a non-violent method of disrupting business much like picketing outside of a store entrance, the difference being that spamming someone’s email is a lot like going into said store and dumping bags of trash all over the place. This is an extremely controversial ruling and I don’t know quite how I feel about it just yet.

John Plumridge August 20, 2011

I understand your point of view but it may also mean companies try to work as ethically as possible, take care of the environment and generally try and manage their reputations properly.

I think there will be a difference made between genuine complaints and a malicious campaign.

Regards
John

Andy E. August 22, 2011

Well, in my own opinion, the actions done by the protesters can’t be considered as spam because it’s a form of protest. The defendants are only exercising their right to freedom of speech against a company that treats its employees with unfair and unjust practices.

The Court of Appeals is right. The protesters did not plan, initiate, and acted a DoS-style hack attack. Pulte Homes should learn more about CAN-SPAM. They ought to.

Joseph August 22, 2011

It’s wrong, plain and simple; the ruling is incorrect and runs against the spirit and letter of the law. You do NOT have the right to ruin someone else’s property, person or well being, and protection of free speech does not include damages. The ruling apparently said it was not a denial of service attack because it wasn’t “attacking protected back-end infrastructure recognized as off limits to the outside world.” Really? Is that the same as breaking a store windown, but not going after the cash register?

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Jim August 22, 2011

In my mind it would depend on the mechanism. If 10 thousand individuals each sent a single e-mail or two the it would not be spamming. If, instead, someone used just a few machines to send the same message over and again, then it would be spamming.

Individuals writing a company that they do business with is supposed to improve the product or service that the company provides. If LIUNA sent the same message over and over, then they were not going to improve anything…only protest, so it was likely counterproductive to them.

Kind of silly in the overall result.

Neil Mac August 23, 2011

I think the point is “the court ruling says people are not legally prevented from using public communication device such as phones and email to protest a company’s action” it does not protect those taking such action in a malicious way. To me it is quite specific in using the term protest.

rv August 25, 2011

Is it illegal to forward spam being send to you back to the spammer? I get hundreds of spam messages from one company any nothing I have done so far has stopped them for any of my clients. these guys uses roving affiliate marketers but all the messages links views right back to the Genie Bra people. If inform the spammer that I will forwarding all spam that I previously.requested to be stopped received right back to them? The FTC web site says that CAN-SPAM does not protect people hiding behind affiliate marketers.

Sam Smith August 30, 2011

These actions aren’t spam – they don’t profit from sending the emails. It is true that they are a form of denial of service attack but they are also a form of protest the purpose of which is not commercial gain. Also, spam is sent to many recipients, while here it is just the opposite – many senders target one recipient.

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