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Winter 2004-13 Anti-spam law enacted

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Number 54
Winter 2004

Anti-spam law enacted

Public Law 108-187, enacted on December 16, 2003, is Congress' attempt to curtail unsolicited electronic mail, known as "spam." The law bears the name "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003," and is also known as "CAN-SPAM Act of 2003."

Congressional findings

Congress found that electronic mail has become an extremely important and popular means of communication, threatened by unsolicited commercial electronic mail (called "spam"). Half of all electronic mail is estimated to be spam, up from an estimated 7% in 2001. Most of these messages are fraudulent or deceptive.

Spam results in increased costs to its recipient, in the form of storage space, and time spent accessing, reviewing and deleting. It also creates a risk that wanted messages will be lost, overlooked or discarded amidst the larger volume of unwanted messages. This has the effect of reducing the reliability and usefulness of electronic mail to the recipient.

Prohibited practices

The statute makes it a federal crime to engage in a number of practices, summarized as follows:

access a computer without authorization, and initiate the transmission of multiple commercial mail messages from or through it;

use a computer to relay or retransmit multiple commercial electronic messages with the intent to deceive recipients as to their origin;

falsify header information in multiple messages;

falsify the identity of the mail account registrant, for five or more accounts;

falsely represent the identity of a mail account registrant of five or more Internet Protocol addresses.

Message requirements

In addition to being true and not misleading, all header information must accurately identify the computer used to initiate the message.

Moreover, all messages must contain a functioning return electronic mail address for the recipient to request not to receive future commercial electronic mail messages. The request must become effective within ten business days.

In addition they must provide a valid physical postal address of the sender.

Messages must also clearly and conspicuously be identified as advertisements or solicitations.

Do-Not-E-Mail registry

Not later than June, 2004, the Federal Trade Commission is to submit to the Senate Committee on Commerce, Science and Transportation, and to the House of Representatives Committee on Energy and Commerce a report setting forth a plan and time table for establishing a nationwide marketing Do-Not-E-Mail registry.

Penalties

Commission of the federal crime is punishable by fines and imprisonment for not more than five years. In addition, the law creates a civil cause of action that may be filed by state jurisdictions to enjoin further violation and to receive compensation for statutory damages.

A provider of Internet access service that is adversely affected by spam may also bring a civil action in federal court to enjoin further violation of the law to recover compensation for actual damages suffered as well as statutory damages.

What exactly is "spam"?


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