President Signs "CAN-SPAM" Act

First national anti-spam law

by / December 16, 2003
President George W. Bush today signed into law the "CAN-SPAM Act of 2003," to help Americans combat the growing problem of unsolicited e-mail or "spam." The law includes tough civil and criminal penalties against the senders of unlawful marketing e-mail, requires special warnings for pornographic messages, and addresses the feasibility of a "do not spam" list. The legislation, introduced by U.S. Senators Ron Wyden (D-Ore.) and Conrad Burns (R-Mont.), is the first national anti-spam law.

To encourage quick and strong enforcement of the new CAN-SPAM law, Burns and Wyden wrote Federal Trade Commission (FTC) Chair Timothy Muris last week requesting that the agency to move promptly to prepare enforcement cases against high-volume "kingpin" spammers, so that when the law comes into effect on January 1, 2004, the FTC will be in a position to take high-profile enforcement actions without delay.

Worldwide, more than 13 billion spam e-mail messages are sent each day, comprising about half of all e-mail traffic. Spam costs an estimated $10 billion per year due to expenses for anti-spam equipment, manpower and lost productivity. The act specifically targets deceptive messages sent by large-volume spammers, who often hide their identities, use misleading subject lines, and refuse to honor opt-out requests from spam recipients.

The final CAN-SPAM Act includes damages of up to $250 per spam e-mail with a cap of $2 million that can be tripled for aggravated violations. There is no cap on damages for e-mails using false or deceptive headers, the cap does not apply. Additionally, the final bill enhances FTC enforcement authority.

The bill requires senders of commercial e-mail to include an enforceable opt-out mechanism, prohibits false and deceptive headers and subject lines, increases monetary damages imposed on spammers who engage in particularly nefarious spamming techniques, and includes strong, multi-pronged enforcement by the FTC, state attorneys general, and Internet service providers (ISPs) with the potential for multi-million dollar judgments. Additional criminal provisions in the bill create several tiers of penalties, ranging up to five years in prison, for several common spamming practices.

This legislation also requires the FTC to report to Congress with a plan to implement a "do-not-spam" list, similar to the "do-not-call" list for which millions of Americans have already registered. The FTC report to Congress will include any potential drawbacks or difficulties with the implementation of such a list. The legislation also gives the FTC the authority to proceed with implementation without further congressional action.