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The CAN-SPAM Act: not canning spam.

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 One of the addresses was a re-mailing service; another address was outdated and no longer active.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.

Materially False and Misleading

The court held that the emails did not violate the CAN-SPAM Act because while some false and misleading information was included, the information was not materially false and misleading as required by the statute. According to the court, the emails were "chock-full of methods" to identify the sender, including several mentions of an accurate domain name, a phone number, and the opt-out link, so it could not be considered misleading.

The court also held that there was no violation of the act by the recipient's failure to use the opt-out link because it would lead to more unwanted email. The court held that an email sender had 10 business days to execute the opt-out option and that the recipient's concern did not amount to the "pattern and practice" of removal violations required under the act.

CAN-SPAM Applies to Text Messages

The CAN-SPAM Act received some recent support in the courts in different areas. A California federal court held that the damages awarded for violations of the act are punishment, not compensation. This eliminates the requirement that spam recipients must attempt to block spam to pursue a claim. While blocking is still a good idea, CAN-SPAM does not require it. In January, the U.S. Supreme Court upheld a ruling that applied the CAN-SPAM Act to unsolicited text messages sent to cell phones. Also in January, a California man was convicted of criminal violation of the CAN-SPAM Act for sending "phishing" emails.

However, evidence suggests that the act only has a limited effect on the battle against spam. While some emailers have been sued or prosecuted for violations, the act does not reach beyond U.S. borders where most spam originates or is filtered. The act allows implementation of a Do Not Email list, similar to the Do Not Call Registry for telemarketing. However, concerns about authentication of email and email security have prevented the list from being created. The act was also criticized for preempting state efforts to regulate spam, some of which had more teeth than the federal act.

Small-Scale Compliance

An October 2006 analysis estimated that only 0.27 percent of all unsolicited commercial emails complied with the CAN-SPAM Act requirements. Newly developed and often-illegal technologies such as botnets (groups of hacked and compromised computers used as re-mailers for spam) have made both the technical and legal battles against spam more difficult.

Perhaps a combination of better technology, particularly at the ISP level, an improved CAN-SPAM Act, an international effort, and user education may help. Spam exists because there is enough of a response to make it worth sending. The only solution may be to increase the risks and costs of sending spam and reduce the market overall.

George H. Pike is director of the Barco Law Library and assistant professor of law at the University of Pittsburgh School of Law. His email address is pike@law.pitt.edu. Send your comments about this column to itletters@infotoday.com.
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Title Annotation:Legal Issues; Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
Author:Pike, George H.
Publication:Information Today
Geographic Code:1USA
Date:Mar 1, 2007
Words:1046
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