Review of CAN-SPAM Act of 2003

CAN-SPAM ACT (Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003)

Federal Legislation
  • Effective January 1, 2004.
  • Preempts all state laws expressly regulating commercial e-mail, except state fraud and trespass laws which may be applied to e-mails.
  • Creates a uniform national standard for commercial e-mails.
  • Commercial e-mail is defined as: "The primary purpose of the e-mail is to advertise or sell a product or service."
  • Commercial e-mail does not include e-mails that:
    • facilitate, complete, or confirm a prior transaction.
    • provide warranty, safety, or security information about a prior purchase.
    • provide information relating to employment or related benefit plan.
    • relate to goods, services, updates or upgrades to which the recipient is entitled to receive under prior transaction.
Commercial E-mail Requirements
  • Give clear and conspicuous notice of the opportunity to opt-out.
  • The opt-out method must be internet based.
  • Provide a functioning opt-out link that must be kept active for 30 days.
  • The opt-out must be honored within 10 days of receipt.
  • When renting e-mail lists you must use your opt-out file as a suppression file against the rented lists.
  • You must provide a physical postal address of the sender ­ a geographic location where consumers can find you.
  • Use a valid header in the "from" line.
  • Use a valid header in the "subject" line.
  • Enforcement of the CAN-SPAM Act can be by one of three groups:
    • the FTC can bring suits for injunction relief and obtain penalties of up to $11,000 per day.
    • the State Attorneys General are entitled to bring law suits for violations of the Act and may recover $250 for each violation up to $2 million.
    • ISPs can sue e-mail spammers (the only cases so far have been those filed by ISPs).
    • No private or class action suits are allowed under the CAN-SPAM Act.
The above summary of the CAN-SPAM Act is in no way a substitution for consulting with your legal counsel for understanding how this law will impact your business.

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