[IP] another spam query - a few pointers/corrections...
-----Original Message-----
From: "Anne P. Mitchell, Esq." <amitchell@xxxxxxxxx>
Date: Sun, 04 Jan 2004 19:34:07
To:dave@xxxxxxxxxx
Subject: Re: [IP] another spam query - a few pointers/corrections...
Dave (et al - please feel free to post),
Ethan wrote:
> >-Your 2nd question included 2 examples of a number of different
> >possible combinations of off-shore and US companies and where they
> >ship to/from, where they are based, where they send spam from/to,
> >etc. That question addresses the jurisdiction and scope of US law,
> >and is a thorny legal issue - one that can be refined much more than
> >this, and I suspect other attorneys could comment on further - BUT a
> >simple explanation I find useful is: The law applies to anyone
> >sending commercial email TO a U.S. recipient AND/OR anyone sending
> >spam originating FROM the U.S.
Actually the original question went to the culpability and liability
of a U.S. merchant using the services of a spammer, even if the
spammer is based outside of the U.S. The key point here is that the
*merchant* is U.S.-based, and under the McCain amendment section of
CAN-SPAM (on which I worked, which is why I know this part cold), the
merchant *themself* will absolutely be liable - that section holds
responsible any U.S. merchant who uses the services of someone whose
mailing "services" are themselves in violation of CAN-SPAM - there is
no issue of jurisdiction, as it is a U.S. merchant, who is directly
liable under that portion of the act. Not unlike other theories of
contributory and/or vicarious liability.
> >-Finally, there are several summaries of various versions of the
> >CAN-SPAM law on the web that also answer some of these types of
> >questions, including: http://www.cdt.org/publications/pp_9.23.shtml
> >www.paulruschmann.com/research/spam/can_spam.pdf
> >http://www.politechbot.com/pipermail/politech/2003-October/000127.htm
Also http://www.isipp.com/fedlaw.php
See also http://www.isipp.com/events.php for those interested in our
Spam and the Law conference towards the end of this month, for those
gluttons who can't get enough of this stuff.
Anne
Anne P. Mitchell, Esq.
President/CEO
Institute for Spam & Internet Public Policy
Professor of Law, Lincoln Law School of SJ
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