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Be CAN-SPAM Compliant
The CAN-SPAM Act of 2003 (Public Law No. 108-187, was S.877 of the 108th Congress), signed into
law by President Bush on December 16, 2003, establishes the United States' first national standards for
the sending of commercial e-mail and requires the Federal Trade Commission (FTC) to enforce its
provisions. The bill's full name is an acronym: Controlling the Assault of
Non-Solicited Pornography and Marketing Act of 2003. Critics of the
law's perceived weaknesses sometimes refer to it as You CAN SPAM.
It also requires the FTC to promulgate rules to shield consumers from unwanted mobile service
commercial messages.
CAN-SPAM defines spam as "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)." It exempts "transactional or relationship
messages." The FTC has yet to clarify what "primary purpose" means; it has already delayed rule-making
for this terminology. Previous state laws had used bulk (a number threshold), content (commercial), or
unsolicited to define spam.
The bill permits e-mail marketers to send unsolicited commercial e-mail as long as it contains
all of the following:
- an opt-out mechanism;
- a valid subject line and header (routing) information;
and
- the legitimate physical address of the mailer.
- a label if the content is adult
If a user opts out, a sender has ten days to remove the address. The legislation also prohibits
the sale or other transfer of an e-mail address after an opt-out request. Use of automated means to
register for multiple e-mail accounts from which to send spam compound other violations. It prohibits
sending sexually-oriented spam without the label later determined by the FTC of SEXUALLY-EXPLICIT. This
label replaced the similar state labeling requirements of ADV:ADLT or ADLT. Labeling regulations for
general spam will be commented on by the FTC this summer.
CAN-SPAM pre-empts existing state anti-spam laws that do not deal with fraud. It makes it a
misdemeanor to send spam with falsified header information. A host of other common spamming practices can
make a CAN-SPAM violation an "aggravated offense," including harvesting, dictionary attacks, Internet
protocol spoofing, hijacking computers through Trojan horses or worms, or using open mail relays for the
purpose of sending spam.
CAN-SPAM allows the FTC to implement a national do-not-email list similar to the FTC's
popular do-not-call registry, or to report back to Congress why the creation of such a list is not
currently feasible. The FTC soundly rejected this proposal, and such a list will not be implemented. The
FTC concluded that the lack of authentication of email would undermine the list, and it could raise
security concerns.
The legislation does not allow e-mail recipients to sue spammers or class-action lawsuits, but
allows enforcement by the FTC, State Attorneys General, Internet service providers, and other federal
agencies for special categories of spammers (such as banks). An individual could still sue as an ISP if
(s)he ran a mail server, but this would likely be cost-prohibitive. Individuals can also sue using state
laws about fraud, such as Virginia's which gives standing based on actual damages, in effect limiting
enforcement to ISPs.
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