What You Need to Know About
CAN-SPAM

The CAN-SPAM Act of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) establishes requirements for those who send commercial email, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask emailers to stop spamming them.

The law, which became effective January 1, 2004, covers email whose primary purpose is advertising or promoting a commercial product or service, including content on a Web site. A "transactional or relationship message" – email that facilitates an agreed-upon transaction or updates a customer in an existing business relationship – may not contain false or misleading routing information, but otherwise is exempt from most provisions of the CAN-SPAM Act.

The Federal Trade Commission (FTC), the nation's consumer protection agency, is authorized to enforce the CAN-SPAM Act. CAN-SPAM also gives the Department of Justice (DOJ) the authority to enforce its criminal sanctions. Other federal and state agencies can enforce the law against organizations under their jurisdiction, and companies that provide Internet access may sue violators, as well.

What the Law Requires

Here's a rundown of the law's main provisions:

· It bans false or misleading header information. Your email's "From," "To," and routing information – including the originating domain name and email address – must be accurate and identify the person who initiated the email.

· It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.

· It requires that your email give recipients an opt-out method. You must provide a return email address or another Internet-based response mechanism that allows a recipient to ask you not to send future email messages to that email address, and you must honor the requests. You may create a "menu" of choices to allow a recipient to opt out of certain types of messages, but you must include the option to end any commercial messages from the sender.

Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your commercial email. When you receive an opt-out request, the law gives you 10 business days to stop sending email to the requestor's email address. You cannot help another entity send email to that address, or have another entity send email on your behalf to that address. Finally, it's illegal for you to sell or transfer the email addresses of people who choose not to receive your email, even in the form of a mailing list, unless you transfer the addresses so another entity can comply with the law.

· It requires that commercial email be identified as an advertisement and include the sender's valid physical postal address. Your message must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out of receiving more commercial email from you. It also must include your valid physical postal address.

Penalties

Each violation of the above provisions is subject to fines of up to $11,000. Deceptive commercial email also is subject to laws banning false or misleading advertising.

Additional fines are provided for commercial emailers who not only violate the rules described above, but also:

· "harvest" email addresses from Web sites or Web services that have published a notice prohibiting the transfer of email addresses for the purpose of sending email

· generate email addresses using a "dictionary attack" – combining names, letters, or numbers into multiple permutations

· use scripts or other automated ways to register for multiple email or user accounts to send commercial email

· relay emails through a computer or network without permission – for example, by taking advantage of open relays or open proxies without authorization.

The law allows the Department Of Justice to seek criminal penalties, including imprisonment, for commercial emailers who do – or conspire to:

· use another computer without authorization and send commercial email from or through it

· use a computer to relay or retransmit multiple commercial email messages to deceive or mislead recipients or an Internet access service about the origin of the message

· falsify header information in multiple email messages and initiate the transmission of such messages

· register for multiple email accounts or domain names using information that falsifies the identity of the actual registrant

· falsely represent themselves as owners of multiple Internet Protocol addresses that are used to send commercial email messages.

What's to come….

The FTC sends out a number of provisions for public comment before they are signed into law. They are reviewing public comment related to the following clarifications. We should anticipate a ruling in the near term:

FTC Publishes Notice of Proposed Rulemaking

Agency Seeks Comment on Definitions and Substantive Provisions Under the CAN-SPAM Act. The Federal Trade Commission published a Federal Register notice today seeking public comment on certain definitions and substantive provisions under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM or the Act).

In this Notice of Proposed Rulemaking (NPRM), the Commission proposes rule provisions on five topics: (1) defining the term "person," a term used repeatedly throughout the Act but not defined there; (2) modifying the definition of "sender" to make it easier to determine which of multiple parties advertising in a single e-mail message will be responsible for complying with the Act's "opt-out" requirements; (3) clarifying that Post Office boxes and private mailboxes established pursuant to United States Postal Service regulations constitute "valid physical postal addresses" within the meaning of the Act; (4) shortening from ten days to three the time a sender may take before honoring a recipient's opt-out request; and (5) 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 e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page.