If you have not yet received e-mail spam, you must be living on another planet. Most of us have been deluged with unsolicited commercial e-mails, and as a result, various laws have been passed and technological methods have been employed to grapple with this growing problem. Just when it seems like the situation could not get any worse, spam messages now are finding their way onto our cell phones. Verizon Wireless says enough's enough, and has filed a federal lawsuit in New Jersey against various alleged cell phone spammers.
According to Verizon Wireless' complaint, the defendants "have been inundating Verizon Wireless and its subscribers with millions of unsolicited commercial electronic messages." In one day alone, the defendants supposedly attempted to send about 152,000 unsolicited commercial electronic messages to thousands of Verizon Wireless subscribers.
The complaint states that the spam messages that were sent to the handsets of subscribers of Verizon Wireless' service were transmitted through fraudulent means, including the use of materially false or misleading information specifically intended to mask the identity of the senders. The spam messages allegedly advertise a variety of products and services, including adult content Web sites, software products, herbal supplements, mortgage leads, and various business opportunities.
Verizon Wireless contends that these spam messages cause "damage" to Verizon Wireless and its subscribers. For example, the messages cause annoyance and unwanted chargers to subscribers. Furthermore, the messages impact Verizon Wireless by "clogging its computers and computer system, co-opting the valuable resources needed to deliver legitimate messages, and causing Verizon Wireless to dedicate equipment, software, and personnel to block, filter, process, switch, and transmit spam messages."
The complaint alleges that the defendants have violated the Computer Fraud and Abuse Act, the Telephone Consumer Protection Act, a New Jersey statute that provides for civil liability for computer-related offenses, that the defendants also have trespassed upon and made illegal use of Verizon Wireless' personal property, and have conspired with others in unlawful conduct in violation of New Jersey common law.
In addition, it is alleged that the defendants have invaded the privacy of Verizon Wireless subscribers, while having been unjustly enriched at Verizon Wireless' expense by misappropriating advertising services on Verizon Wireless' proprietary network.
Verizon Wireless is requesting the federal trial court to issue an injunction prohibiting further unlawful spamming conduct, actual damages of $500 per offending message, then tripled because of "willful" conduct, further economic damages, punitive damages, restitution of and benefits gained by the defendants, and attorney's fees.
Long story short, Verizon Wireless is coming out with guns fully blazing. While the laws cited by Verizon Wireless do not precisely address cell phone spam specifically on point, until such a law is enacted, let's hope that the cell phone spam problem does not escalate like the e-mail spam nightmare, and let's wish Verizon Wireless luck in its lawsuit.
However, and unfortunately, even if Verizon Wireless prevails, the victory may not be much of a deterrent to other cell phone spammers, as many of them are quite capable of shielding their identities, are judgment-proof in terms of not having tremendous financial resources to pay a judgment, or are located outside of the United States, making the pursuit of a lawsuit against them in the United States difficult at best.
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com. His Web site is www.sinrodlaw.com, and he can be reached at ejsinrod@duanemorris.com. To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to ejsinrod@duanemorris.com.
Reprinted here with permission from USAToday.com.