Gavin Howe
The Controlling the Assault of Non-Solicited Pornography and Marketing Act, or the CAN-SPAM Act, was passed in 2003 to set a national standard for the regulation of spam email. The act establishes the requirements for commercial messages, gives recipients the right to stop receiving emails, and outlines penalties for violations. The CAN-SPAM Act is a response to the growing number of complaints over spam emails, aiming to protect people from receiving unwanted, unsolicited commercial emails and other forms of electronic communication. While the act does not ban spam emailing, it imposes laws on the use of deceptive marketing methods and outlines conditions that email marketers must meet. This includes requirements for transparency, accuracy, and clarity in the content, header, and subject line of the email, as well as providing recipients with the opportunity to opt out.
| Characteristics | Values |
|---|---|
| Purpose | To set a national standard for the regulation of spam email |
| Definition of commercial electronic mail message | Any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service |
| Exemptions | Transactional or relationship messages |
| Requirements | Don't use false or misleading header information, don't use deceptive subject lines, identify the message as an ad, tell recipients where you're located |
| Opt-out requests | Must be honored within 10 business days, no fee can be charged, no personally identifying information can be required beyond an email address |
| Non-compliance | Civil penalties, fines, and possible criminal sanctions |
| Enforcement | Federal Trade Commission (FTC) |
| Year | 2003 |
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What You'll Learn
Compliance and penalties
Compliance with the CAN-SPAM Act is essential for organisations and marketers to ensure responsible and ethical email communication. The Act offers a set of rules regarding commercial emails and establishes requirements for commercial messages, giving recipients the right to stop receiving emails and imposing penalties for violations.
The CAN-SPAM Act outlines several requirements to regulate commercial email and protect consumers from unsolicited and misleading emails. These include:
- The use of fraudulent or deceptive header information is prohibited.
- The sender of the email must be correctly identified by the "From," "To," and routing information, including the email address and originating domain name.
- Email recipients must be provided with a clear and easy mechanism to unsubscribe from receiving future emails.
- The content of the message must be accurately reflected in the header/subject line.
- The email should include a working physical postal address for the organisation.
The penalties for non-compliance can be severe and differ based on the agency enforcing the Act. Fines may increase in cases of aggravated violations, with each separate email in violation of the law subject to penalties of up to $53,088, and more than one person may be held responsible. For example, both the company whose product is promoted in the message and the company that originated it may be legally responsible. The CAN-SPAM Act also has certain aggravated violations that may give rise to additional fines and criminal penalties, including imprisonment.
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Definition of spam
The CAN-SPAM Act of 2003 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)." This includes email that promotes content on commercial websites. The law makes no exception for business-to-business emails.
The CAN-SPAM Act was created by Congress to prevent people from receiving unwanted, unsolicited commercial emails and other forms of electronic communications. It does not, however, ban spam emails outright. Instead, it imposes laws on the use of deceptive marketing methods through headings that are "materially false or misleading".
The Act also requires the Federal Trade Commission (FTC) to enforce its provisions and to promulgate rules to shield consumers from unwanted mobile phone spam. It is worth noting that the Act has been largely unenforced, and in 2004, less than 1% of spam complied with the CAN-SPAM Act.
The CAN-SPAM Act defines spam as a bulk email message, text, or phone call that advertises goods or services and is sent without the recipient's consent or an underlying business relationship from which consent can be implied. It is important to note that the Act gives recipients the right to have the sender stop emailing them and spells out tough penalties for violations.
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Enforcement
The CAN-SPAM Act is enforced primarily by the FTC, but other federal agencies, state attorneys generals, and ISPs also help to curtail spam. The legislation prohibits email recipients from suing spammers or filing class-action lawsuits. However, it allows enforcement by the FTC, state attorneys general, Internet service providers, and other federal agencies for special categories of spammers (such as banks).
The CAN-SPAM Act created new criminal penalties to assist the federal government in deterring fraudulent and other offensive forms of spam, including:
- Unmarked sexually explicit emails
- Electronic messages with deceptive subject lines
The penalties can differ based on the agency enforcing the Act, and fines might increase in cases of aggravated violations. Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $53,088, so non-compliance can be costly.
In 2004, less than 1% of spam complied with the CAN-SPAM Act of 2003. Despite this, the law has been largely unenforced. In the course of a hearing, it was noted that half of the staff members of the Bureau of Consumer Protection were working on CAN-SPAM issues, and a good portion of the staff in the regional offices was also working on these issues. It was questioned whether these staff resources were adequate to enforce the Act.
The CAN-SPAM Act alone is not the sole solution to unsolicited emails. Technology has an important role to play in cutting down on the spam that reaches an individual's inbox.
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Anti-spam initiatives
The CAN-SPAM Act is a US law that sets the rules for commercial emails, establishes requirements for commercial messages, gives recipients the right to stop receiving emails, and outlines penalties for violations. Despite its name, the law covers all commercial messages, not just bulk email. The Federal Trade Commission (FTC) enforces the CAN-SPAM Act and the accompanying CAN-SPAM Rule. Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $53,088.
The CAN-SPAM Act has been criticized by anti-spam activists for not requiring emailers to get permission before sending marketing messages and for preventing states from enacting stronger anti-spam protections. The Act also prohibits recipients from suing spammers or filing class-action lawsuits. Despite this, private CAN-SPAM lawsuits have been filed across the country, as plaintiffs seek to take advantage of the statutory damages available under the Act.
To address the problem of unwanted commercial electronic messages, the Federal Communications Commission (FCC) has adopted rules to protect consumers and businesses from such messages on wireless devices like mobile phones. This includes rules regarding commercial email and some text messages sent to wireless devices.
In addition to the CAN-SPAM Act, the FBI has also been involved in anti-spam initiatives. The Cyber Division of the FBI has supported the establishment of multi-jurisdictional task forces and partnerships with federal, state, and local law enforcement to combat cybercrime, including spam. The FBI, via the IC3, also coordinates National Investigative Initiatives to highlight escalating areas of cyber crime and demonstrate decisive action taken by law enforcement.
Canada has also implemented an anti-spam law, known as CASL, which is one of the toughest laws of its kind in the world. CASL applies to all electronic messages, including email and texts, sent in connection with a "commercial activity." It requires organizations sending commercial electronic messages within, from, or to Canada to receive consent from recipients before sending messages.
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Consumer protection
The Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003 is a federal law that establishes the first national standards for the sending of commercial emails in the United States. The law requires the Federal Trade Commission (FTC) to enforce its provisions, which apply to any business using email marketing and communications.
The CAN-SPAM Act treats some marketing texts as another form of commercial electronic mail messages that must meet strict requirements. However, it is important to note that other federal and state laws govern most commercial texting rules. The Telephone Consumer Protection Act (TCPA), for example, governs most text messages and calls from businesses.
The Act's rules do not apply to individuals' regular emails. Instead, it focuses on commercial emails, which are messages with a promotion or advertisement as their primary focus. The CAN-SPAM Act sets out requirements for such commercial messages, gives recipients the right to request that senders stop emailing them, and outlines penalties for violations. Each separate email in violation of the Act is subject to penalties of up to $53,088.
The CAN-SPAM Act also provides for criminal penalties, including imprisonment, for specific actions such as accessing someone else's computer to send spam without permission, using false information to register for multiple email accounts, or generating email addresses through a dictionary attack. Despite its name, the Act does not ban spam emailing outright but imposes laws prohibiting deceptive marketing methods through headings that are "materially false or misleading".
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Frequently asked questions
The Controlling the Assault of Non-Solicited Pornography and Marketing Act, or the CAN-SPAM Act, is a US law that establishes the country's first national standards for the sending of commercial emails.
The CAN-SPAM Act sets out rules for commercial emails, including requirements for commercial messages, and gives recipients the right to stop receiving them. It also spells out penalties for violations.
A commercial message is defined as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service". This includes content on commercial websites.
The CAN-SPAM Act requires transparency, accuracy, and clarity. This includes accurately reflecting the content of the message in the subject line, accurately representing sender information, and providing recipients with a clear and simple way to opt out of future messages.
Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $53,088. Non-compliance can also result in civil penalties, fines, and possible criminal sanctions.
