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