Six Years After CAN-SPAM: Effective Spam Control Can Require Both Technical and Litigation Solutions

CAN-SPAM (15 U.S.C. § 7701-7713) was enacted in 2003 in response to a national hue and cry over spam. At the time, unsolicited commercial email was estimated to account for half of all electronic mail traffic. According to the Congressional “findings” in the preamble to the Act, the sheer quantity of spam was doing real damage to the internet, creating costs for storage, accessing, reviewing and discarding unwanted emails, and reducing the reliability and usefulness of electronic mail to the recipient. The findings further stated that “The growth in unsolicited commercial mail imposes significant monetary costs on providers of Internet access services, businesses and educational and nonprofit institutions that carry and receive such mail, as there is a finite volume of mail that such providers, businesses, and institutions can handle without further investment in infrastructure.” 15 U.S.C. § 7701(a).
Given these findings, one would think that CAN-SPAM would impose onerous penalties on spammers. Au contraire, mon frere! Instead of “canning” spam, the act became known as the “Yes, You CAN SPAM Act.” In fact, the Act does nothing to outlaw the sending of unsolicited emails per se.
Rather, the sending of unsolicited emails is permitted as long as a few basic rules are followed. In general: (i) the “from” and “subject matter” lines in the header must be accurate, relevant to the subject matter of the email and not misleading. A commercial advertiser must also provide its physical address, and a label must also be present if the email contains adult content; (ii) the email must contain an “opt-out” mechanism, that must be honored within 10 days; and (iii) the email must not be not sent to an email address obtained through “address harvesting” or a “dictionary attack” and must not be sent via automatically created email accounts or a computer network to which the sender has gained access without authorization.
Another important element of CAN-SPAM is that it provides that “any statute, regulation, or rule of a State . . . that expressly regulates the use of electronic mail to send commercial messages” is “superseded” — i.e., preempted. This means that states cannot enact laws that are expressly directed at preventing the sending of unsolicited email messages or at reducing the quantity of email messages that can be sent by a single person. In other words, CAN-SPAM means that the federal government has refused to prevent spamming per se and has declared that the states can’t do it either (unless the spam is accompanied by “falsity or deception”). The effect is that much of the job of preventing spam per se is in private hands.