The Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003 is a law passed in 2003 establishing the United States' first national standards for the sending of commercial e-mail. The law requires the Federal Trade Commission (FTC) to enforce its provisions. Introduced by Republican Conrad Burns, the act passed both the House and Senate during the 108th United States Congress and was signed into law by President George W. Bush in December 2003.
History
The backronym CAN-SPAM derives from the bill's full name: Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003. It plays on the word "canning" (putting an end to) spam, as in the usual term for unsolicited email of this type. The bill was sponsored in Congress by Senators Conrad Burns and Ron Wyden.
The CAN-SPAM Act is occasionally referred to by critics as the "You-Can-Spam" Act because the bill fails to prohibit many types of e-mail spam and preempts some state laws that would otherwise have provided victims with practical means of redress. In particular, it does not require e-mailers to get permission before they send marketing messages. It also prevents states from enacting stronger anti-spam protections, and prohibits individuals who receive spam from suing spammers except under laws not specific to e-mail. The Act has been largely unenforced, despite a letter to the FTC from Senator Burns, who noted that "Enforcement is key regarding the CAN-SPAM legislation." In 2004, less than 1% of spam complied with the CAN-SPAM Act of 2003.
The law prescribed the FTC to report back to Congress within 24 months of the effectiveness of the act. Once this took place, no changes were recommended. It also requires the FTC to promulgate rules to shield consumers from unwanted mobile phone spam. On December 20, 2005 the FTC reported that the volume of spam has begun to level off, and due to enhanced anti-spam technologies, less was reaching consumer inboxes. A significant decrease in sexually explicit e-mail was also reported.
Later modifications changed the original CAN-SPAM Act of 2003 by (1) Adding a definition of the term "person"; (2) Modifying the term "sender"; (3) Clarifying that a sender may comply with the act by including a post office box or private mailbox; and (4) Clarifying that to submit a valid opt-out request, a recipient cannot be required to pay a fee, provide information other than his or her email address and opt-out preferences, or take any other steps other than sending a reply email message or visiting a single page on an Internet website.
The mechanics of CAN-SPAM
Applicability
CAN-SPAM, a direct response of the growing number of complaints over spam e-mails, defines a "commercial electronic mail message" as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)." It exempts "transactional or relationship messages." The FTC issued final rules () clarifying the phrase "primary purpose" on December 16, 2004. Previous state laws had used bulk (a number threshold), content (commercial), or unsolicited to define spam. The explicit restriction of the law to commercial e-mails is widely considered by those in the industry to essentially exempt purely political and religious e-mail from its specific requirements. Such non-commercial messages also have stronger First Amendment protection, as shown in Jaynes v. Commonwealth.
Congress determined that the US government was showing an increased interest in the regulation of commercial electronic mail nationally, that those who send commercial e-mails should not mislead recipients over the source or content of them, and that all recipients of such emails have a right to decline them. However, CAN-SPAM does not ban spam emailing outright, but imposes laws on using deceptive marketing methods through headings that are "materially false or misleading". In addition there are conditions that email marketers must meet in terms of their format, their content, and labeling. The three basic types of compliance defined in the CAN-SPAM Act—unsubscribe, content, and sending behavior — are as follows:
Unsubscribe compliance
A visible and operable unsubscribe mechanism is present in all emails. Consumer opt-out requests are honored within 10 business days. Opt-out lists also known as suppression lists are used only for compliance purposes.