A Call to Arms: Marching Orders for the North Carolina Anti-Spam Statute

June 16, 2012

An estimated 2.3 billion spam electronic messages (emails) are sent daily. An average Internet user is likely to receive approximately 1,500 spam e-mails by 2006. Spam e-mail has increased an incredible 450% in the year between summer 2001 and summer 2002. According to a recent European Union study, the cost to consumers and businesses of unsolicited e-mail is between eight and ten billion dollars annually, and other damages include decreased productivity, time taken to delete unwanted messages, server crashes, and the higher cost of Internet access. Money spent to combat spam is estimated to reach $88 million this year, a cost that is expected to double by 2006.
With the costs of spam rising rapidly, North Carolinians might be heartened to know that the North Carolina General Assembly passed a fairly comprehensive anti-spam statute in 1999 aimed at protecting average e-mail users and Internet service providers (“ISPs”) from spam. Yet, in the two and one half years since the passage of the North Carolina anti-spam statute, no cases have been fully litigated under the Act.
This note will take an in-depth look at the North Carolina anti-spam statute, compare relevant parts of the statute with similar provisions in other state statutes, explore remedies and pitfalls brought to light by case law, and address why the North Carolina law’s substantive strength does not bear on its actual use. The North Carolina anti-spam statute will likely withstand challenges under the First Amendment and the dormant Commerce Clause but will, nonetheless, remain ineffective due to the lack of state enforcement resources, a scarcity in individual lawsuits, the management decisions of ISPs, and spammers’ ingenuity.