U.S. CAN-SPAM Law

S.877 CAN-SPAM Act of 2003 (Enrolled as Agreed to or Passed by Both House and Senate) This Act may be cited as the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ", or the CAN -SPAM Act of 2003 .

The Federal Law, which went into effect on January 1, 2004, creating a single national standard to regulate commercial e-mail, will preempt all existing state statutes on the regulation of spam, and will authorize the Federal Trade Commission (FTC) and the states' attorneys general to enforce its provisions. The Act will not ban spam outright, but rather will create a set of standards that must be followed.

Links to info on law:

Below you will find suggested guidelines to help you comply with the CAN-SPAM Act:

Required:

Prohibited:

 

Potential liability:

Potential liability under the Act is quite broad, as the Act implicates not only the individuals actually distributing the spam e-mails, but also extends to companies who procure their services. For instance, if using a "rental list", you will need to be sure it comes from a highly reputable organization. If a company knowingly permits a third-party spammer to act on its behalf, it is subject to prosecution under the Act. Thus, companies or individuals enlisting the services of e-mail distributors had better take care to ensure that e-mails being sent on their behalf by distributors are in compliance with the law.

Critics point out that some spammers live abroad and hence are outside U.S. jurisdiction. But the fact is that many big-time spammers do reside in the United States. Moreover, the bill cannot be evaded by hiring an offshore spammer. A person in the U.S. who hires an offshore spammer to send unlawful e-mails would be fully liable under the bill. Many legitimate businesses currently use opt-out mechanisms that work the vast majority of the time. If a mechanism repeatedly fails to work, it would clearly be thought that a spammer is violating the law.

 

Criminal and civil penalties:

Violators of the Act can be subject to stiff criminal penalties, which include fines and up to five years in prison. Civil damages can amount to as much as $250 per spam e-mail. Aggravated violations can cause civil damages to be tripled. The Act empowers federal and statute authorities, as well as Internet access providers, to institute civil actions against offenders. The bill applies both to spammers and to those who hire spammers. One of those parties, if not both, is likely to have some real resources.

Future:

The legislation takes an opt-out approach as opposed to an opt-in approach, though this will most likely become a thing of the past with implementation of the "Do-Not-Spam" Registry. The Act calls upon the FTC to develop a national "do not spam" registry comparable to the FTC's well-known "do not call" registry for telemarketers. The FTC has been given six months to submit a comprehensive plan to Congress for implementing the do not spam list. The FTC is to implement the plan three months after review by several congressional delegates.

"Under the Can-Spam bill, . spammers--who currently perceive little risk--will suddenly be risking criminal prosecution, Federal Trade Commission enforcement and million-dollar lawsuits by state attorneys general and Internet service providers (ISPs)." - U.S. Senators Ron Wyden (D-Ore.) and Conrad Burns (R-Mont.) co-authored the Can-Spam Act of 2003.

Other Useful Resources:

 

Company Info