CAN-SPAM Act of 2003

The Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003, signed into law by President George W. Bush on December 16, 2003, established the United States' first national standards for the sending of commercial e-mail and requires the Federal Trade Commission (FTC) to enforce its provisions.

Contents

  1. History
  2. The mechanics of CAN-SPAM
  3. Applicability
  4. Unsubscribe compliance
  5. Content compliance
  6. Sending behavior compliance
  7. Criminal offenses
  8. Private right of action
  9. Overriding state anti-spam laws
  10. CAN-SPAM and the FTC
  11. Reaction
  12. Criminal enforcement
  13. Civil enforcement

See also

  1. References Notes
  2. Citations External links
  3. History

The acronym CAN-SPAM derives from the bill's full name: Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003. It plays on the word "canning" (putting an end to) spam, as in the usual term for unsolicited email of this type. The bill was sponsored in Congress by Senators Conrad Burns and Ron Wyden.

The CAN-SPAM Act is occasionally referred to by critics as the "You-CanSpam" Act because the bill fails to prohibit many types of e-mail spam and preempts some state laws that would otherwise have provided victims with practical means of redress. In particular, it does not require e-mailers to get permission before they send marketing messages.[1] It also prevents states

CAN-SPAM Act of 2003

Long title: Controlling the Assault of NonSolicited Pornography And Marketing Act of 2003i

Enacted by the 108th United States Congress Citations Public law Pub.L. 108 187 (http://legislink.org/us/pl108-187) Statutes at117 Stat. 2699 (http://legislink.org/us/stat-11 Codification Titles 15 U.S.C.: Commerce amended and Trade U.S.C. 15 U.S.C. ch. 103 (https://www.law.cornell.e created du/uscode/text/15/cha pter-103) Legislative history Introduced in the Senate as S.877 by Conrad Burns on April 10, 2003

Passed the Senate on October 22, 2003 (97-0) i

Passed the House on November 22, 2003 (392-5)

Signed into law by President George W. Bush on December 16, 2003

This law protects users from enacting stronger anti-spam protections, and prohibits individuals who receive spam from suing spammers except under laws not specific to e-mail.

The Act has been largely unenforced,[2] despite a letter to the FTC from Senator Burns, who noted that "Enforcement is key regarding the CAN-SPAM legislation." In 2004, less than 1% of spam complied with the CAN-SPAM Act of 2003.[3]

The law required the FTC to report back to Congress within 24 months of the effectiveness of the act.[4] No changes were recommended. It also requires the FTC to promulgate rules to shield consumers from unwanted mobile phone spam. On December 20, 2005 the FTC reported that the volume of spam has begun to level off, and due to enhanced anti-spam technologies, less was reaching consumer inboxes. A significant decrease in sexually explicit e-mail was also reported.[5]

Later modifications changed the original CAN-SPAM Act of 2003 by (1) Adding a definition of the term "person"; (2) Modifying the term "sender"; (3) Clarifying that a sender may comply with the act by including a post office box or private mailbox; and (4) Clarifying that to submit a valid opt-out request, a recipient cannot be required to pay a fee, provide information other than his or her email address and opt-out preferences, or take any other steps other than sending a reply email message or visiting a single page on an Internet website.

The mechanics of CAN-SPAM

Applicability

CAN-SPAM, a direct response of the growing number of complaints over spam e-mails,[6] defines a "commercial electronic mail message" 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 issued final rules[7] (16 C.F.R. 316 (https://www.l aw.cornell.edu/cfr/text/16/316)) clarifying the phrase "primary purpose" on December 16, 2004. Previous state laws had used bulk (a number threshold), content (commercial), or unsolicited to define spam. The explicit restriction of the law to commercial e-mails is widely considered by those in the industry[8][9] to essentially exempt purely political and religious e-mail from its specific requirements. Such non-commercial messages also have stronger First Amendment protection, as shown in Jaynes v. Commonwealth.[10]

Congress determined that the US government was showing an increased interest in the regulation of commercial electronic mail nationally, that those who send commercial e-mails should not mislead recipients over the source or content of them, and that all recipients of such emails have a right to decline them.[6] However, CAN-SPAM does not ban spam emailing outright, but imposes laws on using deceptive marketing methods through headings that are "materially false or misleading". In addition there are conditions that email marketers must meet in terms of their format, their content, and labeling.[6] The three basic types of compliance defined in the CAN-SPAM Act — unsubscribe, content, and sending behavior — are as follows:

Unsubscribe compliance

Sending behavior compliance