Can Spam Act of 2003
The CAN-SPAM Act of 2003, signed into law by President Bush on December 16, 2003, establishes the first national standards for the sending of commercial e-mail and requires the Federal Trade Commission (FTC) to enforce its provisions. The bill's full name is an acronym: Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.
It also requires the FTC to promulgate rules to shield consumers from unwanted mobile service commercial messages.
The bill permits e-mail marketers to send unsolicited commercial e-mail as long as it contains all of the following:
- an opt-out mechanism;
- a functioning return e-mail address;
- a valid subject line indicating it is an advertisement; and
- the legitimate physical address of the mailer.
The legislation also prohibits the sale or other transfer of an e-mail address obtained through an opt-out request. It criminalizes the use of automated means to register for multiple e-mail accounts from which to send spam. It prohibits sending sexually-oriented spam without clear markings.
It pre-empts existing state anti-spam laws, and makes it a misdemeanor to send spam with falsified header information. It sets out civil penalties for a host of other common spamming practices used to obtain e-mail addresses, including harvesting, dictionary attacks, Internet protocol spoofing, hijacking computers through Trojan horses or worms, or using open mail relays for the purpose of sending spam.
It allows the FTC to introduce a national do-not-spam list similar to the FTC's popular do-not-call registry, or to report back to Congress why the creation of such a list is not currently feasible. This was in response to testimony by the FTC at a Senate hearing that a do-not-spam list raises significant technical, security, and privacy questions. Some have raised concerns that such a list would simply be used by spammers for targeting, particularly if the spammers are not located in the US.
The legislation does not allow e-mail recipients to sue spammers, but does not prohibit the FTC, State Attorneys General, and Internet service providers from doing so. In the past, spammers have been sued under state law.
Senator John McCain is responsible for a last-minute amendment which makes businesses promoted in spam subject to FTC penalties and enforcement remedies, regardless of whether the FTC is able to identify the specific spammer who initiated the e-mail.
Reaction
Anti-spam activists greeted the new law with dismay and disappointment. Internet activists who work to stop spam stated that the Act would not prevent any spam -- in fact, it appeared to give Federal approval to the practice, and it was feared that spam would increase as a result of the law. The April 29, 2004, the first criminal charges were filed under the CAN-SPAM act. The FTC named the defendant as a group calling itself "Phoenix Avatar," which sent hundreds of thousands of spam emails advertising a "diet patch" and "hormone products." The FTC stated that these products were effectively worthless.
Court records identified the four U.S. defendants as Daniel J. Lin, James J. Lin, Mark M. Sadek and Christopher Chung of West Bloomfield, Michigan. Authorities said they face up to five years in prison under the anti-spam law and up to 20 years in prison under U.S. mail fraud statutes.
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