Eric Goldman writes about how Federal Courts calculate spam damages for federal sentencing purposes. Interesting reading, considering that such spam damages are very difficult to attribute to a party. Is it the spam recipient’s damage from having to delete the emails, is it the ISP having to block or investigate complaints, or is it the spammer’s profits that should guide the damages? The number under each category can vary significantly, so this case is important.

In US v. Kilbride, 2007 WL 2774487 (D. Ariz. Sept. 21, 2007) the the judge ignores any alleged harm to end user-recipients because there was no evidence that the individuals suffered a pecuniary loss. Second, the court ignores the government’s argument that the loss should be measured by the defendants’ gain (over $1.1M in profits attributed to the spamming). Instead, the judge only gives credit to the evidence showing that the ISP (AOL) suffered less than $10,000 of "loss" from the spam, computed by AOL’s cost to investigate complaints over the spam (the government did not present evidence for other email service providers).

 

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