TechRadar reports on some questionable research regarding the spam filling up our inboxes. It appears that the researchers thought that the best way to study spam was to take over a bot network and spam our inboxes.
From the article:
Using ‘proxy bots’ the team of researchers managed to control 75,869 hijacked machines to conduct their own fake spam campaigns
I admit to putting off professional responsibility until Spring 2L, but aren’t the ethics of taking over ~76k compromised computers to launch a spam campaign — against what I can only assume to be well over 12.5 million people1 — somewhat questionable?
This does bring up the obvious question: have they violated the CAN-SPAM Act? My thought is that if we could classify the researchers’ mail as “commercial electronic mail messages,” then it would be a slam dunk against them under 15 USCS § 7704. Fortunately for them, the definition of “commercial electronic mail message” is as follows:
(A) In general. The term “commercial electronic mail message” means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).
15 USCS § 7702(2)
They would likely argue that the “primary purpose” of the mail was actually to obtain statistics for research purposes. The only real argument against that would be that the court should use a reasonable email receiver standard to determine what the “primary purpose” was. That idea isn’t wholly improbable given the rest of the elements:
(B) Transactional or relationship messages. The term “commercial electronic mail message” does not include a transactional or relationship message.
(C) Regulations regarding primary purpose. Not later than 12 months after the date of the enactment of this Act [enacted Dec. 16, 2003], the Commission shall issue regulations pursuant to section 13 [15 USCS § 7711] defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message.
(D) Reference to company or website. The inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this Act if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service.
Id.
In particular, I’d like to call your attention to (D) which seems to examine the substantive email rather than worry about the motivation of the sender.
Of course, this is all speculative as this is the first time I’ve really examined the CAN-SPAM Act. Really it comes down to me being annoyed that someone spammed me in the name of science.
- This number is an assumption based on the crux of the article, which seems to be that one in 12,500,000 people respond to a spam email. [↩]
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