The Clinic filed comments on behalf of the NACDL and the EFF on the CAN-SPAM Act on March 1. The comments argue that the Commission’s proposed guidelines and sentencing enhancements would disproportionately punish CAN-SPAM violators through overly severe and, at times, duplicative application of the federal sentencing guidelines. In the view of the commentators, the key infirmity of the Commission’s proposal lies in its referencing CAN-SPAM violations to the same guidelines used to punish conventional computer crime, trespass, fraud, and privacy violations. Unlike these violations, spamming activities do not involve non-routine intrusions into physical space, property damage, or misuse of the victim’s data. The commentators further argued that the proposed sentencing enhancements were redundant and imprecise. Some proposed enhancements treated aspects inherent to the offense (such as mass marketing activity) as aggravating factors, thereby increasing the base-level punishment. Other enhancements sought to rely on estimates of economic loss, which are extraordinarily difficult to estimate in spamming cases and may be subject to manipulation by plaintiffs and prosecutors. Finally, the commentators urged the Commission to set the level of sophistication appropriately high – and not merely at the level of the average person -- when applying sentencing enhancements for use of “sophisticated means” in violation of 1037. To read the comments, please click here.
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