The CAN-SPAM Act: Not Canning Spam

Article excerpt

Judging by the 4,287 emails in my junk folder, spam is a problem that has not gone away. While spam-filtering software applications have made a dent in my spam traffic (the filter directs the emails right into my junk-mail folder instead of my inbox), current estimates indicate that the vast majority of email traffic is spam.

Three years ago, Congress attempted to address the problem of unsolicited commercial email (as spam is officially known) with the enactment of the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act. The act was an attempt to regulate and restrict spam by requiring commercial email marketers to meet a set of standards in their email or face civil or criminal sanctions.

The act bans the use of false or misleading header information (to or from and routing) and the use of deceptive subject lines. The act also requires that email recipients be given an opt-out method, and senders cannot sell or transfer email addresses of those who opt out. Finally, the act requires that the email be identified as an ad, and the email must include a postal address or phone number.

Commercial Speech Is Protected

The act does not completely ban unsolicited commercial email. While most of us consider spam annoying, it is still considered commercial speech protected by the First Amendment. Commercial speech, such as spam and other forms of advertising, does not get the same constitutional protection as traditional speech; however, outright bans are usually unconstitutional. Consequently, if a commercial emailer complies with the requirements of the CAN-SPAM Act, its spam is legal.

As with most laws, concepts that may seem obvious become less so when the impact on the law and how they are interpreted by the courts are tested. A recent federal court decision explored the meaning of "false," "misleading," and "deceptive" and found that those concepts were not quite as cut and dried as they might appear.

An 'E-Deal' Email

This case involved commercial email sent by a travel agency and received by a Web hosting and design company among others. The commercial email offered an "e-deal" on a cruise and claimed that the recipient had signed up to receive the offer. The header information included more than one address identifying the sender. One of the addresses was a re-mailing service; another address was outdated and no longer active. The email also included an opt-out link as well as the travel agency's Web site and phone number.

The recipient, who also managed several anti-spam Web sites, was able to identify the travel agency and called to complain. He indicated that he had not signed up to receive the offer, that the header information was inaccurate, and that he refused to use the email-based opt-out because he believed that it would only lead to more unwanted messages. The agency indicated it would remove the recipient's email address.

Due to technical challenges, however, the email address was not removed and several additional emails were received. At this point, the recipient sent a letter to the agency threatening to sue. He also posted information about the emails on one of his anti-spam Web sites. The travel agency then sued for defamation and copyright infringement, and the recipient sued for violations of both state anti-spam law and the CAN-SPAM Act. …