42 Pages Posted: 23 Oct 2003 Last revised: 14 May 2014
This Article proposes that unsolicited commercial email ("spam") is indeed a nuisance, and that ISPs and other affected businesses should sue the persons responsible for swamping the Internet with billions of spam for creating a nuisance. Nuisance doctrine is superior to the currently favored "trespass to chattels" because it does not require courts to engage in unnecessary legal fictions or doctrinal somersaults in finding that spam has "dispossessed" a plaintiff from its computer network. The direct and consequential costs attributable to this email scourge -- such as loss of bandwidth usage, developing and maintaining filtering software, and hiring more staff -- are simply not trespass harms. These costs reveal that the real problem is that spam is unreasonably and substantially interfering with an ISP's commercial operations -- a paradigmatic nuisance injury. As a common law cause of action, nuisance also avoids the overprotection problems inherent in anti-spam statutes, which have proven ineffective because legislators are rightly concerned about accidentally stifling legitimate commercial activity on the Internet. As ISPs and other businesses continue to sue spammers, they should utilize nuisance doctrine as part of their overall strategy to eliminate this omnipresent menace to the Internet because it precisely redresses the legal harm caused by spam.
Keywords: spam, email, trespass to chattels, trespass, nuisance, CAN-SPAM, filters, Internet, property, Intel v. Hamidi
Suggested Citation: Suggested Citation
Mossoff, Adam, Spam - Oy, What a Nuisance!. Berkley Technology Law Journal, Vol. 19, No. 2, 2004; MSU-DCL Public Law Research Paper No. 01-20. Available at SSRN: https://ssrn.com/abstract=460720 or http://dx.doi.org/10.2139/ssrn.460720