CAN-SPAM: What It Means for the Future of Email Communication

Originally Published: 12/16/2003

“Today, it’s a nightmare that threatens to overwhelm people’s legitimate use of the Internet. All the technologies and the filters have failed to keep our inboxes free of junk.”
– Representative Heather Wilson (R-New Mexico) (Associated Press Newswire, December 2003)

While most people wouldn’t consider the continuous stream of spam, defined as unsolicited commercial electronic mail, a nightmare, it is a fact that many are becoming more and more annoyed at such solicitations. The problem has become so large it hit Washington’s radar screen, and President Bush recently signed into law an Act to thwart spammers. Named the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or CAN-SPAM for short, the measure spells out new rules governing the delivery of commercial email messages. Congress states that unsolicited commercial email now accounts for over half of all email traffic, up significantly from 7% in 2001, and lawmakers predict the volume to continue its meteoric rise. With the volume of unsolicited messages drastically on the rise, a general outcry from the public, and society’s warm reception of the federal telemarketing do-not-call list, Congress decided it was time to legislate commercial email. The Act will override all state regulations.

Unsolicited Commercial Email

CAN-SPAM prohibits many forms of unsolicited commercial email messages, as well as, email address harvesting and computerized generation of email addresses. The Act includes the following prohibitions:

Predatory and Abusive Commercial Email:
· Intentionally sending multiple commercial email messages with false header information in an effort to prevent the recipient from identifying, locating or responding to the sender.
· Falsifying the identity of the actual registrant for five or more email or online user accounts, or two or more domain names, and intentionally sending mail from any combination of these falsified accounts.
· Penalties can be more severe for spammers who obtain email addresses by harvesting or randomly generating them by computer.
· Penalties for each violation include a fine and/or time in prison.

Other Restrictions on Commercial Email:
· CAN-SPAM prohibits sending commercial, transactional or relationship email containing false or misleading “from” line information.
· Email with deceptive subject lines are prohibited.
· Messages must have a functioning return email address, and it needs to function for no less than 30 days after the email was sent.
· All commercial email must include: a clear identification that the message is an advertisement or solicitation, a clear opportunity for the recipient to opt-out of further emails and a valid physical postal address of the sender.
· Once a recipient opts-out of an email list, the sender must remove them from the list within 10 business days of the request.

Restrictions on Sexually Oriented Material:
· No person may transmit email that includes sexually oriented material without a clearly identifying notice/mark of such content in the subject line, so that the recipient has an opportunity to bypass the message. Such notices/marks will be established in the near future.
· In a sexually oriented email, senders can only include the notice/mark that it is sexual in nature, a commercial message, and instructions detailing how to access the sexually oriented material. Actual sexual content cannot be included and should only be able to be retrieved via an action by the recipient.
· Penalties for each violation include a fine and/or time in prison.

Violators of any section of this Act may be subject to statutory damages at the federal and/or state level, and Internet Access Providers are also given the power to bring legal action to prevent further abuses and for any monetary losses incurred due to the actions of spammers.

The CAN-SPAM Act will also apply to wireless devices, but the Commission has not yet created detailed rules regarding these devices.

The CAN-SPAM Act does not apply when sending transactional or relationship messages (except when the sender’s header information is false or misleading), nor does it apply to any recipient who has directly opted-in to receive a particular commercial message or messages from third parties where the user has agreed to receive such messages.

Do-Not-E-Mail List

The second portion of the Act, and probably more important than the rules governing spamming, is the creation of a national Do-Not-E-Mail registry similar to the national Do-Not-Call list that took effect in the fall of 2003. The Do-Not-E-Mail registry will potentially be as restrictive to email marketers, as the Do-Not-Call list has been to telemarketers. Once a user signs up for the list, companies will no longer be able to send unsolicited email. Marketers will be able to continue sending third party emails to opt-in lists, but the company will have to prove the user has willingly agreed to accept such commercial messages from related, third-parties.

One drawback to the CAN-SPAM Act is the issue of international spamming, as this Act is limited to messages originating in the United States. There will need to be worldwide cooperation in order to truly institute this Act and the Do-Not-E-Mail list on a consistent basis, as those outside the U.S. are not bound by the rules or penalties of the Act.

The CAN-SPAM Act of 2003 is the first national step toward regulating email traffic, and any company involved in an email marketing program will need to heed these guidelines. While there are no overwhelming demands placed on individuals or companies sending commercial email messages, all marketers need to be aware of the regulations and penalties for violating them. Most of the guidelines are common courtesies already used by legitimate email marketers; it will be the true spammers that will be most affected. However, the Do-Not-E-Mail registry could become a concern for marketers, as all will need to secure opt-in documentation from email list members and be able to prove each voluntarily opted-in, should a recipient accuse the marketer of spamming.