Once upon a time, and without a federal law in place, more than half of the states enacted their own laws to address the pervasive problem of unsolicited commercial email, affectionately known as "spam."

Then in 2003 Congress stepped up to the plate and enacted the CAN-SPAM Act. This federal statute imposes certain requirements and restrictions on a nationwide basis with respect to the sending of unsolicited commercial email. Problem solved, right?

Not quite.

For one thing, email spam has continued, relatively unabated. Why? Because many spammers are overseas and/or cover their tracks in a way in which they believe that they will not be caught and punished. In addition, some spammers frankly have meager financial resources, making them somewhat judgment proof when it comes to monetary damages.

In addition to these problems, unsolicited commercial electronic communications now can take varied forms, not just by way of email. Thus, it has been an open question whether "electronic mail messages" addressed by Congress in the CAN-SPAM Act include social networking communications that do not necessarily involve the sending of communications to an email box. Well, that question has just been answered in the affirmative by one federal trial judge.

Several months ago, Facebook, the largest social media company, filed a lawsuit in federal court in San Jose, California alleging that MaxBounty, via affiliate publishers, established fraudulent Facebook pages that sent Facebook users to outside commercial web sites. MaxBounty sought to dismiss the complaint, arguing that the CAN-SPAM Act specifically is confined to email messages that are not at issue in the case.

Ultimately, the judge disagreed with MaxBounty and held that the CAN-SPAM Act does apply in this social media context because the legislative intent was to help cure the volume of unsolicited and potentially inaccurate and misleading commercial communications that burden the growing Internet. This means that Facebook's case against MaxBounty may proceed toward trial.

As information technology advances, the law seeks to catch up. This is one more example of a law (and a relatively recent one at that) being applied in a new context that may not have been envisioned perfectly when enacted.

Biography

Eric Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual property disputes. To receive his weekly columns, send an e-mail to with the word "Subscribe" in the subject line.

Disclaimer: This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.

Reprinted with permission of Findlaw.com