Back to: LAW, RISK, & TRANSACTIONS

CAN-SPAM Act Definition

Controlling the Assault of Non-Solicited Pornography and Marketing Act 2003 or commonly known as the CAN-SPAM Act sets forth the rules for the sending commercial e-mails. Violation of the provisions of these rules is punishable under the federal law. The CAN-SPAM Act was enacted by the Congress in 2003 and was signed by President George W. Bush on December 16, 2003. The law came into effect on January 1, 2004. The law makes the Federal Trade Commission responsible for enforcing its provisions. Among other provisions, the Act makes it mandatory to include identifying information like a return address in the commercial e-mails, it prohibits the sender from including any misleading or deceptive statements or mail header and it gives recipients the rights to unsubscribe from a mailing list and after unsubscribing they must not receive any more emails from the sender.

A Little More on What is the CAN-SPAM Act

Controlling the Assault of Non-Solicited Pornography and Marketing Act 2003 was enacted as a response to the increasing rate of complaints regarding the spam emails. Senator Conrad Burns and Senator Ron Wyden sponsored the bill in Congress. According to the law, any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service, comes under the purview of the CAN-SPAM Act. This includes the electronic mails promoting content on commercial websites. The aim of enacting the CAN-SPAM Act was to regulate the commercial electronic mail nationally and protect the interest of recipients against misleading information and deceptive marketing methods. The act doesnt ban the spam emailing altogether, but it formulates a few rules and regulation about how to send such emails. The Act prohibits the senders of such emails from sending any information which is "materially false or misleading". The law further requires them to follow certain rules regarding the format, content, and labeling of such emails. The provisions of the law also empower the recipients to decline to receive such emails. The main requirements under the CAN-SPAM Act are as follows-

• There should not be any false or misleading header information in the email. The "From", "To" and "Reply To" must be clear and it must have legitimate routing information. The domain name and email address of the sender must be mentioned accurately so that the recipient can identify the person or business who initiated the message.
• The Subject line of the message must not be misleading. It should clearly communicate the content of the message. The message must contain at least one line.
• The mail must clearly and conspicuously disclose that it contains advertisement. There are a number of methods of how to do this, but it is mandatory to identify the message as an ad.
• The mail must include a valid physical postal address where the sender can be reached. It may be the current street address of the sender, a registered post office box with U.S Postal Service or a private mailbox registered with a commercial mail receiving agency established under the regulations of Postal Service.
• The message must clearly mention how the recipient can opt out of getting any email from that sender in the future. It must be written in such a way that it is easy and understandable for an ordinary person. The recipient must be able to communicate their choice easily via a return mail or any other simple internet-based service.
• A recipient must be allowed to utilize the unsubscribing mechanism at least for 30 days after receiving the mail. The sender must comply with the unsubscribe request within 10 business days of receiving it. The sender must not charge any fee from the recipient against the request. They also must not ask for any personal identifying information about the recipient other than their email addresses. The mechanism of unsubscribing must be easy and simple. Sending a reply email or visiting a single page on a website should solve the issue. After receiving an opt-out request from the recipients their email addresses cannot be sold or transferred to a third-party for any purposes other than complying with the request. The sender can only hand it over to a company who they have hired to get help in complying with the CAN-SPAM Act.
• If a business hires another company for handling email marketing, both companies are responsible for complying with the provisions of the CAN-SPAM Act. If the law is violated while sending the emails, both of them might have to face legal action.

For each separate email that fails to comply with the provisions of the CAN-SPAM Act, the sender may have to pay a penalty up to $41, 484. The Act clearly mentions all its requirements and certain misinterpretations and fraudulent practices may be viewed as criminal offenses. Those are as follows- Use of hijacked computer for sending spam emails. Sending spam emails using multiple email accounts which are obtained by falsifying account registration information. Sending multiple spam emails using an Internet Protocol address that is not owned by the sender but he or she falsely claims so. The CAN-SPAM Act has been criticized on several occasions for failing to prohibit many types of spam emails. The critics also argue the CAN_SPAM Act obstructs the implementation of some state laws that would otherwise ensure practical means of redressal for the victims. It also prohibits the states to enact a stronger act for anti-spam protection. The Act was also criticised because it doesn't require a company to take prior permission for sending the marketing messages.

References for CAN-SPAM Act

https://en.wikipedia.org/wiki/CAN-SPAM_Act_of_2003https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-businesshttps://searchcrm.techtarget.com/definition/Can-Spam-Act-of-2003

Academic Research for CAN-SPAM Act

• The CAN-SPAM Act: An unsufficient response to the growing spam problem, Zhang, L. (2005). Berkeley Tech. LJ, 20, 301. The article discusses the increasing problem of spam emails. It suggests, as high-volume of emails can be sent at low cost, the spamming has become an especially pernicious form of advertisement. In the traditional form of advertising like telemarketers and junk mailers, the companies had to employ workers, spend on long-distance telephone calls and paper and envelopes. Compared to that the spammers need to spend significantly low cost, rather they transfer the costs to the recipients as the recipients need to sort through a large volume of spam they receive regularly. The paper argues, the spam is being used abusively on several occasions due to its attractive nature and that ultimately results in increasing spam problem.
• The CAN-SPAM Act: a silver bullet solution?, Lee, Y. (2005). Communications of the ACM, 48(6), 131-132. The paper discusses the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 and presents a number of recommendations on how to improve the effectiveness of this law.
• Compliance with the CAN-SPAM Act of 2003, Grimes, G. A. (2007). Communications of the ACM, 50(2), 56-62. The Paper studies the application of the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 and analyzes its effectivity in controlling the unsolicited commercial emails messages.
• Preemption of state spam laws by the federal CAN-SPAM Act, Ford, R. A. (2005). U. Chi. L. Rev., 72, 355. The CAN-SPAM Act received criticisms from many quarters for being weaker than its corresponding state laws and preempting the stronger state laws that would have banned the spam altogether. This paper argues in favor of the CAN-SPAM Act and says the law is much stronger than the critiques first thought it to be. The paper discusses how this law explicitly preserves the state laws and its provisions. It says the law does not comment on the methods of state law enforcement and the state enforcement is often significantly stronger than the federal enforcement as the later depends on the action of the federal government, internet service providers and state agencies. The paper concludes the narrow interpretation of its preemption clause serves two purposes. It prevents the states from enacting laws that are inconsistent with its provisions and helps in enforcing a uniform national policy. It also allows the states to experiment within the scope of that policy so that most effective spam regulations can be implemented.
• Spam after Can-Spam: How Inconsistent Thinking Has Made a Hash out of Unsolicted Commercial E-Mail Policy, Sullivan, J. D., & De Leeuw, M. B. (2003). Santa Clara Computer & High Tech. LJ, 20, 887. The paper argues the CAN-SPAM act has received strong criticisms from all quarters except the direct marketers who are being regulated by this act. The paper fears that this is not a good sign. The paper says although the Act has managed to secure a fanfare, the reaction of the anti-spamming activists and the spammers suggests the law is not much effective in restricting the growing spam problem. It discusses the weaknesses of the Act and argues a philosophical, historical, technological and economic analysis of the market forces that are at play needs to be done to solve the ever-increasing spam problem.
• The CAN-SPAM Act: An inadequate attempt to deal with a growing problem, Arora, V. (2005). Colum. JL & Soc. Probs., 39, 299. This paper criticizes the CAN-SPAM Act on two counts. First, only the commercial spam comes under the purview of this Act and not political spam. Second, the Act fails to decrease the number of spam to a considerable degree. The paper proposes two recommendations to address these issues. It proposes the implementation of an opt-out regulation for the political spams and enactment of an opt-in regulation for commercial spam only.
• How to Can Spam, Miller, G. (2000). How to Can Spam. Vand. J. Ent. L. & Prac., 2, 127. The paper is written by Congressman Garry Miller. He introduced H.R. 2162, the Ca Spam Act as he felt a need for a legislative solution to the rising the spam problem. Here he discusses the possible measures that can be taken to restrict the spam problem.
• Will the CAN-SPAM Act of 2003 Finally Put a Lid on Unsolicited E-Mail, Hamel, A. (2004). New Eng. L. Rev., 39, 961. This note attempts to trace back the origin or the spam problem and discusses its implications. In its second part, it analyzes the CAN-SPAM Act of 2003 and explains its scopes and limitations. It also describes the common provisions of the corresponding state laws that preceded this law. Finally, the note suggests that a combination of legislation and technological developments is required to solve the spam problem.
• Spam, spim, and spit, Cerf, V. G. (2005). Communications of the ACM, 48(4), 39-43. The paper discusses the legislation and law enforcement that fight against the different types of network abuse and unwanted activity. It considers the Acceptable Use Policies (AUP) as an effective tool for combating the problem of network abuse. It suggests that AUP can be used for meeting new and emerging forms of network abuse and are enforceable across political jurisdiction. It explains the Internet Service Providers and other network providers should craft the AUP in a way so that it serves two purposes. On the one hand, it should protect their networks from unwanted activities and on the other, it should censor the objectionable contents for others.
• Is the CAN-SPAM Act the Answer to the Growing Problem of Spam, Trussell, J. (2003). Loy. Consumer L. Rev., 16, 175. This article analyses the effectivity of the Controlling the Assault of Non-Solicited Pornography and Marketing Act 2003 in combating the ever-growing problem of spam or unsolicited commercial emails.
• The CAN-SPAM Act: New rules for sending commercial e-mail messages and implications for the sales force, Clarke III, I., Flaherty, T. B., & Zugelder, M. T. (2005). Industrial Marketing Management, 34(4), 399-405. This paper analyzes the implications of the Controlling the Assault of Non-Solicited Pornography and Marketing Act 2003 for the salespersons and sales managers. It provides a detailed guideline for the salespersons on how to comply with the provisions of the Act while continuing with their promotional effort.