Can Spam Act Of 2003

Created by Laura Biber on April 03, 2016 1600

Congress passed the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act in 2003 to address the problem of unsolicited commercial emails sent to individuals to advertise products and services. The Act prohibits the knowing sending of commercial messages with the intent to deceive or mislead recipients. It applies only to commercial e-mail, defined as a "message with the primary purpose of which is the commercial advertisement or promotion of a commercial product or service." 

The Act requires that senders of commercial email provide an opt-out requirement for email recipients. To enable a consumer's ability to opt-out, senders of commercial email must include a "clearly and conspicuously" displayed return address. Commercial email senders are also barred from including deceptive subject headings and any adult content must be appropriately labeled.

The FTC was charged with the enforcement of the Act and the Justice Department is allowed to seek criminal penalties for violations of the criminal provisions of the Act. The criminal provisions of the Act include the unlawful transmission of sexually oriented unsolicited commercial email and certain methods of sending commercial email such as zombie drones, materially false header information, and obtaining IP addresses through fraudulent methods. The Act provides for statutory damages for Internet Service Providers (15 U.S.C. § 7706(g)).

The Act has been criticized as being ineffective. Some of the common criticisms raised are that the Act does not require commercial emailers to get permission before sending marketing messages (i.e. requiring opt-in instead of opt-out), the Act preempts more strict state regulation of spam, it does not cover all types of spam, and it does not allow for private individuals to sue for violations of the Act. Critics also point to the fact that the FTC never really enforced the Act. The FTC reported in 2005 that the vo...

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Written by Laura Biber on July 06, 2016 0 2396
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Supporting Authority

White Buffalo Ventures, LLC v. University of Texas, 420 F.3d 366 (5th Cir. 2005)
Link to Supporting Resource

The court held that the CAN-SPAM Act did not preempt the University of Texas from having its own anti-solicitation policy. The court held that the university's interest in "user efficiency," but not their use in "server efficiency," justified this regulation on commercial speech. 

Created by Laura Biber on March 28, 2016 0 2556

Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009)
Link to Supporting Resource

In this case, the court held that the plaintiffs lacked standing to bring a CAN-SPAM Act claim because they were not an “Internet Access Service” provider, nor were they adversely affected by the spam. The court also analyzed the express preemption clause found in 15 U.S.C. § 7707(b). The preemption clause states the CAN-SPAM Act will preempt state laws regulating the use of commercial email “except to the extent that any such statute, regulation, or rule prohibits falsity or deception.” The court read this exception for falsity or deception narrowly, holding that the plaintiff’s state claims were preempted because they had not alleged facts that rose to the level of “falsity or deception” within the meaning of the CAN-SPAM Act.

Created by Laura Biber on April 23, 2016 0 2557


CAN-SPAM Act of 2003 (15 U.S.C. §§ 7701et seq.)
Link to Supporting Resource

This chapter includes the Congressional findings related to the Act, the prohibited conduct, and enforcement mechanisms for the Act. 

Created by Laura Biber on March 28, 2016 0 2554

CAN-SPAM Rules (16 C.F.R. § 316)
Link to Supporting Resource

The FTC developed these regulations in a accordance with the CAN-SPAM Act of 2003.

Created by Laura Biber on March 28, 2016 0 2595
Preemption of State Spam Laws by the Federal CAN-SPAM Act
Link to Supporting Resource

This article discusses the CAN-SPAM Act’s limitations on spam and compares these limitations to state efforts to regulate spam. The author discusses the federal preemption doctrine and outlines how some portions of state spam laws may still survive.

Created by Laura Biber on April 24, 2016 0 2509

Silence of the Spam: Improving the CAN-SPAM Act by Including an Expanded Private Cause of Action
Link to Supporting Resource

The author argues that the CAN-SPAM Act has been ineffective because the entities charged with its enforcement (the FTC, state attorneys, and ISPs) lack the incentive or resources to adequately enforce the act. The author further argues that an expanded private right of action for email recipients is needed to better enforce this law.

Created by Laura Biber on April 23, 2016 0 2534