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14 Vand. J. Ent. & Tech. L. 225 (2011-2012)
Silence of the Spam: Improving the CAN-SPAM Act by Including an Expanded Private Cause of Action

handle is hein.journals/vanep14 and id is 227 raw text is: Silence of the Spam:
Improving the CAN-SPAM Act by
Including an Expanded Private Cause
of Action
ABSTRACT
In the last decade, email spam has become more than just an
annoyance for email users. Unsolicited messages now comprise more
than 95 percent of all email sent worldwide. This costs US businesses
billions of dollars in lost productivity each year. The US Congress
passed the CAN-SPAM Act of 2003 to regulate the spam industry.
Unfortunately, data show that spam only increased since the Act's
passage. Part of the reason for this failure is that the Act only
authorizes the Federal Trade Commission, state attorneys general, and
Internet Service Providers to bring action under its provisions. Each of
these authorized entities either lacks the incentive or the resources to
adequately enforce the Act, resulting in little to no reduction of spam.
As a result, email recipients-not spammers-bear the cost of spam.
This Note argues that the Act should incorporate an expanded private
cause of action for email recipients, thereby increasing the enforcement
level. This will deter spam prospectively by shifting the cost of
unsolicited email from the recipient onto the sender.
TABLE OF CONTENTS
I.    OVERVIEW OF THE CAN-SPAM ACT: REGULATION, NOT
PROHIBITION       ................................... ....... 230
A. Regulation through Criminal Liability and Statutory
Penalties      ................................. ...... 230
B. Enforcement of CAN-SPAM Provisions: Actions by
Federal Agencies, States, and ISPs Only ...... ...... 231
C. The Do-Not-E-Mail Registry and its Subsequent
R ejection  ...................................................................... 233
D. Preemption of State Spam  Laws................................... 234
II.   CAN-SPAM's ENFORCEMENT FAILURE: A QUESTION OF
ECONOMICS AND INCENTIVES         ........................... 235

225

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