E-nuisance: Unsolicited Bulk E-mail at the Boundaries of Common Law Property Rights – Note by Jeremiah Kelman

From Volume 78, Number 1 (November 2004)

E-mail, the most revolutionary advancement in communication since the printing press, has now become the single most important means of intrusion into our daily lives. Because of its inherent convenience and efficiency, e-mail facilitates an unprecedented level of constant, unchecked disturbances from unsolicited bulk messages, also known as spam. As a result of the Internet’s decentralized architecture and flawed technical underpinnings, consumers and businesses face daily mass invasions via e-mail. These continuous transmissions of low value unsolicited e-mails are invasions to property interests. In sum, spam is nuisance.

This Note will analyze the extent to which nuisance law can be applied to the unwanted intrusion of unsolicited bulk e-mail. To date, no adequate legal or technical remedy has been fully tested or put into place to properly protect the inbox from unwanted intrusions. The computer industry has lagged in organizing the massive task of implementing wide scale changes to the e-mail system and currently available technical remedies have done little to stem the enormous tide of spam. Legal solutions applied thus far (via the U.S. Congress and courts) have suffered from confusion, ineffectiveness, and poor tailoring to the core problem. Although a few tough, potentially effective anti-spam laws have been enacted in states such as California, they have since been largely preempted by the recently passed, and widely criticized, Federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”). Significant steps, however, have been made in utilizing the common law in fighting senders of spam (“spammers”). Several cases have been successfully brought against spammers under the common law doctrines of trespass to chattels or personal property. While these trespass arguments continue to be experimented with by courts, the law of nuisance may be an alternative and possibly preferable avenue of redress that has yet to be fully explored in the context of spam.



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