New Federal Law Bans Spam
NEW FEDERAL LAW BANS SPAM
November 21, 2003, Washington DC - The House
of Representatives passed the Senate Bill S877, with Amendments. Dubbed
as the CAN-SPAM Bill, its formal title is "Controlling the Assault
of Non-Solicited Pornography and Marketing Act of 2003."
The congressional findings point to the facts that email is relied upon
by millions of Americans, and that SPAM has grown to over 50% of all
email, up from 7% in 2001. They go on to cite that there are costs
associated with SPAM and deleting it may cause normal email to be
The "main" problem is that Spammers disguise who they are, use
misleading subject lines, send vulgar and pornographic material and they
don't let you Opt-Out from receiving any more unwanted emails. Because
of this abuse, "there is a substantial government interest in
regulating commercial electronic mail on a nationwide basis."
Section 2(b)(1) Senate Bill 877.
The CAN-SPAM definition of the "Commercial Electronic Mail
Message" is important. It is described as a commercial
advertisement or promotion of a product or service, including the
content of a web site operated for commercial purposes. It notably EXCLUDES
"Transactional or Relationship" emails that are sent to
facilitate, complete or confirm a commercial transaction. This also EXCLUDES
account statements, change of status, product updates and upgrades,
warranty information, safety or security information, subscriptions,
memberships and other similar commercial relationships.
What is the penalty? For the passive Spammer who has only disguised 2 or
more domain names and used 5 or more fake email addresses, itís 1 year
in jail, plus fines. If the Spammer used over 20 fake email addresses,
or sent out more than 2,500 SPAM emails in a day, the penalty jumps to 3
years in jail, plus fines. If the Spammer was convicted of Spamming
before, or if they committed another felony, they are looking at 5 years
in jail, plus fines. The Spammers also stand to lose any personal or
real property associated with the act of Spamming.
To avoid Spamming, here are the rules. A commercial email:
MUST NOT disguise the mail header (the digital path which
it took to get to the recipient).
MUST NOT use a false or misleading "From" line.
MUST NOT use a deceptive "Subject" line.
MUST include a "clear and conspicuous identification
that the message is an Advertisement."
MUST include a "valid physical postal address of the
MUST include a "clear and conspicuous notice"
that lets the recipient Opt-Out.
MUST include a functioning return address or automated way
to Opt-Out. The Opt-Out mechanism must work for 30 days after the email
was sent, and the sender has 10 days to remove someone that asks to be
If a Spammer "harvests" (collects) email addresses off the
Internet, or uses a computer program to randomly generate them, these
are considered "Aggravated Violations" which can triple the
fines. In the case of State-enforced civil actions, the statutory fines
can increase from $250 to $750 per Spammed email address, with a cap
increasing from $2,000,000 to $6,000,000, plus attorney fees.
The CAN-SPAM Act supercedes all existing State Spam laws, EXCEPT for the
State laws that pertain to falsifying email addresses. Furthermore, the
Federal government wants to be notified by any State that initiates a
Spam lawsuit, and they reserve the right to join in and move the case to
a regional US District Court.
On the horizon are a few interesting additions to the CAN-SPAM Act:
The Commission has 6 months to deliver a
report on creating a DO NOT EMAIL REGISTRY, with implementation sometime
after 9 months. Similar to the Do Not Call Registry for phone
solicitation, this would remove individuals from receiving all
unsolicited commercial emails.
Within 9 months, the Commission must deliver a report on implementing a
Bounty on Spammers. The CAN-SPAM Act specifically requests
"procedures for the Commission to grant a reward of not less than
20 percent of the total civil penalty collected.Ö"
Within 18 months, the Commission must deliver a report on a plan for the
"identifying codes" that must be used in the "subject
line" that let the recipient know that itís a commercial email.
For example, ADV in the subject line would indicate that the email is an
Finally, the Federal Communication Commission has 270 days to deliver
the rules on how all of this applies to Spam received over wireless
devices, which predominately includes cell phones.
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