595 F.3d 825, 2010 U.S. App. LEXIS 3324
Case Name: Kramer v Perez, 595 F.3d 825, February 19, 2010
Parties: Robert W. Kramer, III doing business as CIS Internet Services v. Henry Perez, Suzanne Bartok, Gary C. Brown.
Procedure: Suzanne Bartok appealed the district court’s order finding her jointly and severally liable for $23.6 million in damages for her participation in sending spam. The district court found Bartok liable under Iowa’s anti-spam statute.
Facts: Kramer operated an internet service provider in Iowa, and did business as CIS Internet Services. Henry Perez and Suzanne Bartok, residents of Arizona, owned and operated AMP Dollar Savings and did business under the names Mortgageleads.tv and Plastic Profits. Gary Brown was an accountant for Perez and Bartok. In 2001, Mortgageleads.tv entered in an agreement with Cal Capital. In an attempt to generate leads, Mortgageleads.tv sent spam to cis.net e-mail addresses. CIS blocked all but 23 messages and traced the e-mails back to the mortgage refinancing website. Kramer filed a multi-count complaint alleging Perez, Bartok, and Brown violated the Iowa anti-spam statute.
Holding: The appeals court reversed the district court’s decision to hold Bartok jointly and severally liable under Iowa Code § 714E.
Reasoning: The court states the Iowa statute making it unlawful to use an interactive computer service to initiate the sending of bulk e-mail is plain in its meaning. A person must use an interactive computer to initiate the sending. The statute does not define initiate or send. The court states Bartok cannot be held liable for her conduct under the Iowa anti-spam statute. There is nothing to suggest Bartok utilized an interactive computer to initiate the sending of the spam. In addition, there is no part of § 714E which allows for civil liability for conspiracy and aiding and abetting. Bartok cannot be held liable under common law theories of conspiracy due to the fact that Kramer did not prove the damages elements for those claims. The court refuses to creates a private cause of action for civil conspiracy under § 714E where the text creates no such liability. Bartok cannot be held liable for violating the anti-spam statute.
Critical Analysis: Bartok took part in initiating the sending of the bulk e-mail, but did not actually utilize a computer to do so. The current law in Iowa allows Bartok to not be found liable, even though she played a significant role in the violation of the anti-spam law. Revision of the law or the addition of another law may be necessary for those who conspire, aid and abet in sending spam mail. The common law rule for conspiracy and aiding and abetting require damages to be shown. In this case, CIS was able to filter all but 23 e-mails, and therefore cannot prove damages. Bartok is not held liable because CIS did their job properly, even though she took part in violating the statute. The common law conspiracy and aiding and abetting statutes were not constructed to deal with violating the anti-spam law. The question of whether a person would is involved in the sending of the bulk e-mail, without actually pressing the button on the keyboard will continue to be litigated unless the legislature revises the anti-spam law. Even then there may be a question as to how far reaching the law would be.