We've discussed various well known problems with the US's CAN SPAM law -- which, in some ways, is more about setting the rules for how to spam
, rather than outlawing spam -- in the past, but Michael Scott
points us to an analysis by John Levine, who argues that the real issue may be technologically unsavvy judges
, which makes these kinds of cases very difficult to bring, successfully:
Judges tend to be reasonably smart, but few of them have a technical background. That means that before a judge can rule sensibly on a spam case, he or she needs to learn about the statutes and case law that apply, and also enough about e-mail technology to understand the evidence and evaluate the credibility of the lawyers' arguments on each side.... What this means is that the only cases that are likely to be filed are very easy ones, where the spammer didn't hide his identity or use affiliates, so the connection from the spam to the spammer is easy to show, or ones where the plaintiff has the legal skills to do a lot of the case work himself to keep the costs affordable, or unfortunate ones where the plaintiff is an anti-spam zealot with a poor case, leading to bad decisions....
While there may be some truth to this, I have to wonder if a bigger issue -- at least in the US -- is that CAN SPAM limits who can file lawsuits to the FTC and to ISPs. So individual recipients of spam basically have no recourse. If we expanded who could actually file the lawsuits to include those who receive a ton of spam, perhaps the lawsuits against spammers would increase.