CAN-SPAM Act of 2003
Encyclopedia
The CAN-SPAM Act of 2003 (15 U.S.C. 7701, et seq., Public Law No. 108-187, was S.877 of the 108th United States Congress
), signed into law by President
George W. Bush
on December 16, 2003, establishes the United States
' first national standards for the sending of commercial e-mail
and requires the Federal Trade Commission
(FTC) to enforce its provisions. The acronym CAN-SPAM derives from the bill's full name: Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003. This is also a play on the usual term for unsolicited email of this type, spam
. The bill was sponsored in Congress by Senators Conrad Burns
and Ron Wyden
.
The CAN-SPAM Act is occasionally referred to as the "You-Can-Spam" Act because while the bill does not explicitly legitimize e-mail spam, it preempts laws that allowed for (among other things) easier prosecution and rights to private action. In particular, it does not require e-mailers to get permission before they send marketing messages. It also prevents states from enacting stronger anti-spam protections, and prohibits individuals who receive spam from suing spammers. The Act has been largely unenforced, despite a letter to the FTC from Senator Burns, who noted that "Enforcement is key regarding the CAN-SPAM legislation." In January 2004, the month the law went into effect, less than 1% of spam complied with the CAN-SPAM Act of 2003.
The law required the FTC to report back to Congress within 24 months of the effectiveness of the act. No changes were recommended. It also requires the FTC to promulgate rules to shield consumers from unwanted mobile phone spam
. On December 20, 2005 the FTC reported that the volume of spam has begun to level off, and due to enhanced anti-spam technologies, less was reaching consumer inboxes. A significant decrease in sexually-explicit e-mail was also reported.
Later modifications changed the original CAN-SPAM Act of 2003 by (1) Adding a definition of the term "person"; (2) Modifying the term "sender"; (3) Clarifying that a sender may comply with the act by including a post office box or private mailbox and (4) 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 email address and opt-out preferences, or take any other steps other than sending a reply email message or visiting a single page on an Internet website.
The bill permits e-mail marketers to send unsolicited commercial e-mail as long as it adheres to 3 basic types of compliance defined in the CAN-SPAM Act: unsubscribe, content and sending behavior compliance:
Content is exempt if it consists of :
There are no restrictions against a company emailing its existing customers or anyone who has inquired about its products or services, even if these individuals have not given permission, as these messages are classified as "relationship" messages under CAN-SPAM.
If a user opts out, a sender has ten days to cease sending and can only use that email address for compliance purposes. The legislation also prohibits the sale or other transfer of an e-mail address after an opt-out request. The law also requires that the unsubscribe mechanism must be able to process opt-out requests for at least 30 days after the transmission of the original message.
Use of automated means to register for multiple e-mail accounts from which to send spam compound other violations. It prohibits sending sexually-oriented spam
without the label later determined by the FTC of "SEXUALLY EXPLICIT." This label replaced the similar state labeling requirements of "ADV:ADLT" or "ADLT."
CAN-SPAM makes it a misdemeanor
to send spam with falsified header information. A host of other common spamming practices can make a CAN-SPAM violation an "aggravated offense," including harvesting
, dictionary attack
s, IP address spoofing
, hijacking computers through Trojan horses
or worms
, or using open mail relay
s for the purpose of sending spam.
Though this move was criticized by all anti-spam activists, one libertarian legal commentator praised it, citing a California law seen as punitive that he claimed disallowed the sending of a single uninvited email to a neighbor to volunteer time for a block party, and a wave of suits filed in Utah.
against telemarketing
, or to report back to Congress why the creation of such a list is not currently feasible. The FTC soundly rejected this proposal, and such a list will not be implemented. The FTC concluded that the lack of authentication of email would undermine the list, and it could raise security concerns.
The legislation prohibits e-mail recipients from suing spammers or filing class-action lawsuits. It allows enforcement by the FTC, State Attorneys General, Internet service provider
s, and other federal agencies for special categories of spammers (such as banks). An individual might be able to sue as an ISP if (s)he ran a mail server, but this would likely be cost-prohibitive and would not necessarily hold up in court. Individuals can also sue using state laws about fraud, such as Virginia's which gives standing based on actual damages, in effect limiting enforcement to ISPs.
Senator John McCain
is responsible for a last-minute amendment which makes businesses promoted in spam subject to FTC penalties and enforcement remedies, if they knew or should have known that their business was being promoted by the use of spam. This amendment was designed to close a loophole which allowed those running affiliate programs to allow spammers to abuse their programs, and encouraged such businesses to assist the FTC in identifying such spammers. The McCain amendment, as it is known, was authored for Senator McCain's office by Anne P. Mitchell
Senator Corzine sponsored an amendment to allow bounties for some informants. The FTC has limited these bounties to individuals with inside information . The bounties are expected to be over $100,000 , but none have been awarded yet.
(Coalition Against Unsolicited Commercial Email) stated:
AOL Executive Vice President and General Counsel Randall Boe
stated:
Advertising organizations such as the Direct Marketing Association
(DMA) have sought to weaken implementation of the law in various ways. These include lengthening the time for honoring opt-outs from 10 business days to 31 calendar days, limiting the validity of opt-out requests to no more than two to three years, and eliminating rewards to persons who assist the Federal Trade Commission
in enforcement of the act. The DMA has also opposed provisions requiring the subject line of spam to indicate that the message is an advertisement.
, was the first person to be arrested under the CAN-SPAM Act of 2003. After pleading guilty, he was sentenced in a closed session. Within a few months, hundreds of lawsuits had been filed by an alliance of ISPs. Many of these efforts resulted in settlements; most are still pending. Though most defendants were "John Doe
s," many spam operations, such as Scott Richter
's, were known.
On April 29, 2004, the United States government brought the first criminal and civil charges under the Act. Criminal charges were filed by the United States Attorney for the Eastern District of Michigan, and the FTC filed a civil enforcement action in the Northern District of Illinois. The defendants were a company, Phoenix Avatar, and four associated individuals: Daniel J. Lin, James J. Lin, Mark M. Sadek, and Christopher Chung of West Bloomfield, Michigan. Defendants were charged with sending hundreds of thousands of spam emails advertising a "diet patch" and "hormone products." The FTC stated that these products were effectively worthless. Authorities said they face up to five years in prison under the anti-spam law and up to 20 years in prison under U.S. mail fraud statutes.
On September 27, 2004, Nicholas Tombros pled guilty to charges and became the first spammer to be convicted under the Can-Spam Act of 2003. He was sentenced in July 2007 to three years probation, six months house arrest, and fined $10,000.
On August 25, 2005, three people were indicted on two counts of fraud and one count of criminal conspiracy. On March 6, 2006 Jennifer R. Clason, 33, of Raymond, New Hampshire
, pled guilty and was to be sentenced on June 5, 2006. She faced a maximum sentence of 5 years on each of the three counts and agreed to forfeit money received in the commission of these crimes. On June 25, 2007, the remaining two were convicted of spamming out millions of e-mail messages that included hardcore pornographic images. Jeffrey A. Kilbride, 41, of Venice, California, and James R. Schaffer, 41, of Paradise Valley, Arizona
, were convicted on eight counts in U.S. District Court in Phoenix, Arizona
. Both were sentenced to over five years in prison, and ordered to forfeit $1,300,000. The charges included conspiracy
, fraud
, money laundering
, and transportation of obscene material
s, all of which were affirmed through an appeal
to the United States 9th Circuit Court
. The trial, which began on June 5, was the first to include charges under the CAN-SPAM Act of 2003, according to the Department of Justice
. The specific law that prosecutors used under the CAN-Spam Act was designed to crack down on the transmission of pornography in spam. Two other men, Andrew D. Ellifson, 31, of Scottsdale, Arizona
, and Kirk F. Rogers, 43, of Manhattan Beach, California
, also pled guilty to charges under the CAN-SPAM Act related to this spamming operation. Both were scheduled to be sentenced on June 5, 2006 in Phoenix.
On January 16, 2008, Jeffrey Goodin, 45, an Azusa, California
, man was convicted by a jury in United States district court
in Los Angeles
in United States v. Goodin, U.S. District Court, Central District of California, 06-110, under the CAN-SPAM Act (the first conviction under the Act), and on June 11, 2007, was sentenced to 70 months in federal prison. Out of a potential sentence of 101 years prosecutors had asked for a sentence of 94 months. Goodin was already detained in custody as he had missed a court hearing.
On April 1, 2008, Mounir Balarbi, of Tangier
, Morocco
, was the first person outside the United States to have an arrest warrant validated under the CAN-SPAM Act of 2003. Mounir's trial was held in absentia, and he was sentenced in a closed session.
As of late 2008, CAN-SPAM has been all but ignored by spammers. A review of spam levels in October 2006 estimated that 75% of all email messages were spam, and the number of spam emails complying with the requirements of the law were estimated to be 0.27% of all spam emails.
By mid 2010, about 90% of email were spam.
,
APC Entertainment, Inc., of Davie, Florida
,
MD Media, Inc., of Bingham Farms, Michigan
,
Pure Marketing Solutions, LLC, of Tampa, Florida
, TJ Web Productions, LLC, of Tampa, Florida
, and BangBros.com, Inc., RK Netmedia, Inc., and OX Ideas, Inc., LLC, of Miami, Florida
entered into stipulated consent decrees. Impulse Media Group, Inc. of Seattle, Washington
chose to defend itself against the allegations made by the FTC.
The Department of Justice asserted that the CAN-SPAM statute imposed strict-liability
on producers such as Impulse Media for the actions of its non-agent, independent-contractor affiliates. However, the two courts to consider that argument rejected the DOJ's contention. In March 2008 the remaining defendant, Impulse Media Group, went to trial. At trial, it was determined that IMG's Affiliate Agreement specifically prohibited spam bulk-email and that if an affiliate violated that agreement, it would be terminated from the program. In fact, several affiliates had been terminated for that very reason. After a 2½ day trial, the jury retired to determine whether Impulse Media should be held liable for the bad acts of its affiliates. Three and one-half hours later, the jury returned with a verdict that IMG was not liable and that the emails were the fault of the affiliates.
In March 2006, the FTC was awarded its largest victory to date - a $900,000 judgment against Jumpstart Technologies, LLC for numerous violations of the CAN-SPAM act.
Related acts:
108th United States Congress
The One Hundred Eighth United States Congress was the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives from January 3, 2003 to January 3, 2005, during the third and fourth years of George W. Bush's...
), signed into law by President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
on December 16, 2003, establishes the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
' first national standards for the sending of commercial e-mail
E-mail
Electronic mail, commonly known as email or e-mail, is a method of exchanging digital messages from an author to one or more recipients. Modern email operates across the Internet or other computer networks. Some early email systems required that the author and the recipient both be online at the...
and requires the Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
(FTC) to enforce its provisions. The acronym CAN-SPAM derives from the bill's full name: Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003. This is also a play on the usual term for unsolicited email of this type, spam
E-mail spam
Email spam, also known as junk email or unsolicited bulk email , is a subset of spam that involves nearly identical messages sent to numerous recipients by email. Definitions of spam usually include the aspects that email is unsolicited and sent in bulk. One subset of UBE is UCE...
. The bill was sponsored in Congress by Senators Conrad Burns
Conrad Burns
Conrad Ray Burns is a former United States Senator from Montana. He is only the second Republican to represent Montana in the Senate since the passage in 1913 of the Seventeenth Amendment to the United States Constitution and is the longest-serving Republican senator in Montana history.While in...
and Ron Wyden
Ron Wyden
Ronald Lee "Ron" Wyden is the senior U.S. Senator for Oregon, serving since 1996, and a member of the Democratic Party. He previously served in the United States House of Representatives from 1981 to 1996....
.
The CAN-SPAM Act is occasionally referred to as the "You-Can-Spam" Act because while the bill does not explicitly legitimize e-mail spam, it preempts laws that allowed for (among other things) easier prosecution and rights to private action. In particular, it does not require e-mailers to get permission before they send marketing messages. It also prevents states from enacting stronger anti-spam protections, and prohibits individuals who receive spam from suing spammers. The Act has been largely unenforced, despite a letter to the FTC from Senator Burns, who noted that "Enforcement is key regarding the CAN-SPAM legislation." In January 2004, the month the law went into effect, less than 1% of spam complied with the CAN-SPAM Act of 2003.
The law required the FTC to report back to Congress within 24 months of the effectiveness of the act. No changes were recommended. It also requires the FTC to promulgate rules to shield consumers from unwanted mobile phone spam
Mobile phone spam
Mobile phone spam is a form of spamming directed at the text messaging service of a mobile phone. It is described as mobile spamming, SMS spam, text spam or m-spam....
. On December 20, 2005 the FTC reported that the volume of spam has begun to level off, and due to enhanced anti-spam technologies, less was reaching consumer inboxes. A significant decrease in sexually-explicit e-mail was also reported.
Later modifications changed the original CAN-SPAM Act of 2003 by (1) Adding a definition of the term "person"; (2) Modifying the term "sender"; (3) Clarifying that a sender may comply with the act by including a post office box or private mailbox and (4) 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 email address and opt-out preferences, or take any other steps other than sending a reply email message or visiting a single page on an Internet website.
Applicability
CAN-SPAM defines a "commercial electronic mail message" as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)." It exempts "transactional or relationship messages." The FTC issued final rules (16 C.F.R. 316) clarifying the phrase "primary purpose" on December 16, 2004. Previous state laws had used bulk (a number threshold), content (commercial), or unsolicited to define spam.The bill permits e-mail marketers to send unsolicited commercial e-mail as long as it adheres to 3 basic types of compliance defined in the CAN-SPAM Act: unsubscribe, content and sending behavior compliance:
Unsubscribe compliance
- A visible and operable unsubscribe mechanism is present in all emails.
- Consumer opt-out requests are honored within 10 days.
- Opt-out lists also known as Suppression listSuppression listA Suppression List is a list of suppressed e-mail addresses used by e-mail senders to comply with the CAN-SPAM Act of 2003. CAN-SPAM requires that senders of commercial emails provide a functioning opt-out mechanism by which email recipients can unsubscribe their email address from future email...
s are only used for compliance purposes.
Content compliance
- Accurate from lines (including "friendly froms")
- Relevant subject lines (relative to offer in body content and not deceptive)
- A legitimate physical address of the publisher and/or advertiser is present.
- A label is present if the content is adult.
Sending behavior compliance
- A message cannot be sent through an open relay
- A message cannot contain a false header
Content is exempt if it consists of :
- religious messages;
- political messages;
- content that broadly complies with the marketing mechanisms specified in the law; or
- national security messages.
There are no restrictions against a company emailing its existing customers or anyone who has inquired about its products or services, even if these individuals have not given permission, as these messages are classified as "relationship" messages under CAN-SPAM.
If a user opts out, a sender has ten days to cease sending and can only use that email address for compliance purposes. The legislation also prohibits the sale or other transfer of an e-mail address after an opt-out request. The law also requires that the unsubscribe mechanism must be able to process opt-out requests for at least 30 days after the transmission of the original message.
Use of automated means to register for multiple e-mail accounts from which to send spam compound other violations. It prohibits sending sexually-oriented spam
Internet pornography
Internet pornography is pornography that is distributed by means of various sectors of the Internet, primarily via websites, peer-to-peer file sharing, or Usenet newsgroups...
without the label later determined by the FTC of "SEXUALLY EXPLICIT." This label replaced the similar state labeling requirements of "ADV:ADLT" or "ADLT."
CAN-SPAM makes it a misdemeanor
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
to send spam with falsified header information. A host of other common spamming practices can make a CAN-SPAM violation an "aggravated offense," including harvesting
E-mail address harvesting
Email harvesting is the process of obtaining lists of email addresses using various methods for use in bulk email or other purposes usually grouped as spam.-Methods:...
, dictionary attack
Dictionary attack
In cryptanalysis and computer security, a dictionary attack is a technique for defeating a cipher or authentication mechanism by trying to determine its decryption key or passphrase by searching likely possibilities.-Technique:...
s, IP address spoofing
IP address spoofing
In computer networking, the term IP address spoofing or IP spoofing refers to the creation of Internet Protocol packets with a forged source IP address, called spoofing, with the purpose of concealing the identity of the sender or impersonating another computing system.-Background:The basic...
, hijacking computers through Trojan horses
Trojan horse (computing)
A Trojan horse, or Trojan, is software that appears to perform a desirable function for the user prior to run or install, but steals information or harms the system. The term is derived from the Trojan Horse story in Greek mythology.-Malware:A destructive program that masquerades as a benign...
or worms
Computer worm
A computer worm is a self-replicating malware computer program, which uses a computer network to send copies of itself to other nodes and it may do so without any user intervention. This is due to security shortcomings on the target computer. Unlike a computer virus, it does not need to attach...
, or using open mail relay
Open mail relay
An open mail relay is an SMTP server configured in such a way that it allows anyone on the Internet to send e-mail through it, not just mail destined to or originating from known users...
s for the purpose of sending spam.
Private right of action
CAN-SPAM provides a limited private right of action to Internet Access Services that have been adversely affected by the receipt of emails that violate the Act. A CAN-SPAM plaintiff must satisfy a higher standard of proof as compared with government agencies enforcing the Act; thus, a private plaintiff must demonstrate that the defendant either sent the email at issue or paid another person to send it knowing that the sender would violate the Act. Despite this heightened standard, private CAN-SPAM lawsuits have cropped up around the country, as plaintiffs seek to take advantage of the statutory damages available under the Act.Overriding state anti-spam laws
CAN-SPAM preempts (supersedes) state anti-spam laws that do not deal with fraud and was rushed through Congress in late 2003, just before a tougher anti-spam law that had already passed in California was to take effect at the beginning of 2004. The relevant portion of CAN-SPAM reads:
This chapter supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.
Though this move was criticized by all anti-spam activists, one libertarian legal commentator praised it, citing a California law seen as punitive that he claimed disallowed the sending of a single uninvited email to a neighbor to volunteer time for a block party, and a wave of suits filed in Utah.
CAN-SPAM and the FTC
CAN-SPAM allows the FTC to implement a national do-not-email list similar to the FTC's popular National Do Not Call RegistryUnited States National Do Not Call Registry
The National Do Not Call Registry is intended to give U.S. consumers an opportunity to limit the telemarketing calls they receive. To register by telephone , consumers may call 1-888-382-1222. The registry was set to begin in 2003, but a court challenge delayed its implementation until 2004. The...
against telemarketing
Telemarketing
Telemarketing is a method of direct marketing in which a salesperson solicits prospective customers to buy products or services, either over the phone or through a subsequent face to face or Web conferencing appointment scheduled during the call.Telemarketing can also include recorded sales pitches...
, or to report back to Congress why the creation of such a list is not currently feasible. The FTC soundly rejected this proposal, and such a list will not be implemented. The FTC concluded that the lack of authentication of email would undermine the list, and it could raise security concerns.
The legislation prohibits e-mail recipients from suing spammers or filing class-action lawsuits. It allows enforcement by the FTC, State Attorneys General, Internet service provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
s, and other federal agencies for special categories of spammers (such as banks). An individual might be able to sue as an ISP if (s)he ran a mail server, but this would likely be cost-prohibitive and would not necessarily hold up in court. Individuals can also sue using state laws about fraud, such as Virginia's which gives standing based on actual damages, in effect limiting enforcement to ISPs.
Senator John McCain
John McCain
John Sidney McCain III is the senior United States Senator from Arizona. He was the Republican nominee for president in the 2008 United States election....
is responsible for a last-minute amendment which makes businesses promoted in spam subject to FTC penalties and enforcement remedies, if they knew or should have known that their business was being promoted by the use of spam. This amendment was designed to close a loophole which allowed those running affiliate programs to allow spammers to abuse their programs, and encouraged such businesses to assist the FTC in identifying such spammers. The McCain amendment, as it is known, was authored for Senator McCain's office by Anne P. Mitchell
Anne P. Mitchell
Anne P. Mitchell is an attorney, Professor of Law, and the founder and CEO of the Institute for Social Internet Public Policy.-Personal life:...
Senator Corzine sponsored an amendment to allow bounties for some informants. The FTC has limited these bounties to individuals with inside information . The bounties are expected to be over $100,000 , but none have been awarded yet.
Reaction
Those opposing spam greeted the new law with dismay and disappointment, almost immediately dubbing it the "You Can Spam" Act. Internet activists who work to stop spam stated that the Act would not prevent any spam in fact, it appeared to give federal approval to the practice, and it was feared that spam would increase as a result of the law. CAUCECAUCE
CAUCE, or the Coalition Against Unsolicited Commercial Email, is a non-profit advocacy group that works to reduce the amount of unsolicited commercial email, or spam, via legislation. CAUCE was founded in 1997 by participants in the USENET newsgroup news.admin.net-abuse.email and the SPAM-L mailing...
(Coalition Against Unsolicited Commercial Email) stated:
- "This legislation fails the most fundamental test of any anti-spam law, in that it neglects to actually tell any marketers not to spam. Instead, it gives each marketer in the United States one free shot at each consumer's e-mail inbox, and will force companies to continue to deploy costly and disruptive anti-spam technologies to block advertising messages from reaching their employees on company time and using company resources. It also fails to learn from the experiences of the states and other countries that have tried "opt-out" legal frameworks, where marketers must be asked to stop, to no avail."
AOL Executive Vice President and General Counsel Randall Boe
Randall Boe
Randall Boe was General Counsel for AOL and has been involved in many ground breaking cases regarding internet law. He was born in Ohio and grew up in Iowa City, Iowa. He attended the University of Wisconsin–Madison and graduated in 1983 with majors in political science and economics. He...
stated:
- "[CAN-SPAM] not only empowered us to help can the spam, but also to can the spammers as well . . . Our actions today clearly demonstrate that CAN-SPAM is alive and kicking — and we're using it to give hardcore, outlaw spammers the boot.
Advertising organizations such as the Direct Marketing Association
Direct Marketing Association (USA)
Direct Marketing Association is a trade organization which seeks to advance all channels of direct marketing. DMA was founded in 1917. It is based in the United States, but its members include companies from 48 other countries as well, including half of the Fortune 100 companies, as well as...
(DMA) have sought to weaken implementation of the law in various ways. These include lengthening the time for honoring opt-outs from 10 business days to 31 calendar days, limiting the validity of opt-out requests to no more than two to three years, and eliminating rewards to persons who assist the Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
in enforcement of the act. The DMA has also opposed provisions requiring the subject line of spam to indicate that the message is an advertisement.
Criminal enforcement
On February 16, 2004, Anthony Greco, 18, of Cheektowaga, New YorkCheektowaga (town), New York
Cheektowaga is a town in Erie County, New York, United States. As of the 2000 census, the town had a total population of 94,019. The name comes from the Iroquoian word Ji-ik-do-wa-gah, meaning the place of the crab apple tree...
, was the first person to be arrested under the CAN-SPAM Act of 2003. After pleading guilty, he was sentenced in a closed session. Within a few months, hundreds of lawsuits had been filed by an alliance of ISPs. Many of these efforts resulted in settlements; most are still pending. Though most defendants were "John Doe
John Doe
The name "John Doe" is used as a placeholder name in a legal action, case or discussion for a male party, whose true identity is unknown or must be withheld for legal reasons. The name is also used to refer to a male corpse or hospital patient whose identity is unknown...
s," many spam operations, such as Scott Richter
Scott Richter
Scott Richter is the CEO of Media Breakaway, formerly known as OptInRealBig.com LLC. Other related companies are Dynamic Dolphin and affiliate.com....
's, were known.
On April 29, 2004, the United States government brought the first criminal and civil charges under the Act. Criminal charges were filed by the United States Attorney for the Eastern District of Michigan, and the FTC filed a civil enforcement action in the Northern District of Illinois. The defendants were a company, Phoenix Avatar, and four associated individuals: Daniel J. Lin, James J. Lin, Mark M. Sadek, and Christopher Chung of West Bloomfield, Michigan. Defendants were charged with sending hundreds of thousands of spam emails advertising a "diet patch" and "hormone products." The FTC stated that these products were effectively worthless. Authorities said they face up to five years in prison under the anti-spam law and up to 20 years in prison under U.S. mail fraud statutes.
On September 27, 2004, Nicholas Tombros pled guilty to charges and became the first spammer to be convicted under the Can-Spam Act of 2003. He was sentenced in July 2007 to three years probation, six months house arrest, and fined $10,000.
On August 25, 2005, three people were indicted on two counts of fraud and one count of criminal conspiracy. On March 6, 2006 Jennifer R. Clason, 33, of Raymond, New Hampshire
Raymond, New Hampshire
Raymond is a town in Rockingham County, New Hampshire, United States. The population was 10,138 at the 2010 census. Part of Pawtuckaway State Park is in the north....
, pled guilty and was to be sentenced on June 5, 2006. She faced a maximum sentence of 5 years on each of the three counts and agreed to forfeit money received in the commission of these crimes. On June 25, 2007, the remaining two were convicted of spamming out millions of e-mail messages that included hardcore pornographic images. Jeffrey A. Kilbride, 41, of Venice, California, and James R. Schaffer, 41, of Paradise Valley, Arizona
Paradise Valley, Arizona
Paradise Valley is a small, affluent town in Maricopa County, Arizona, United States. According to the 2005 Census Bureau, the population of the town was 14,558. Despite the town's relatively small area and population compared to other municipalities in the Phoenix metropolitan area, Paradise...
, were convicted on eight counts in U.S. District Court in Phoenix, Arizona
Phoenix, Arizona
Phoenix is the capital, and largest city, of the U.S. state of Arizona, as well as the sixth most populated city in the United States. Phoenix is home to 1,445,632 people according to the official 2010 U.S. Census Bureau data...
. Both were sentenced to over five years in prison, and ordered to forfeit $1,300,000. The charges included conspiracy
Conspiracy (crime)
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
, fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
, money laundering
Money laundering
Money laundering is the process of disguising illegal sources of money so that it looks like it came from legal sources. The methods by which money may be laundered are varied and can range in sophistication. Many regulatory and governmental authorities quote estimates each year for the amount...
, and transportation of obscene material
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
s, all of which were affirmed through an appeal
United States v. Kilbride
United States v. Kilbride is a case from the United States Court of Appeals for the Ninth Circuit rejecting an appeal from two individuals convicted of violating the CAN SPAM Act and US obscenity law. The defendants were appealing convictions on 8 counts from the District Court of Arizona for...
to the United States 9th Circuit Court
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
. The trial, which began on June 5, was the first to include charges under the CAN-SPAM Act of 2003, according to the Department of Justice
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
. The specific law that prosecutors used under the CAN-Spam Act was designed to crack down on the transmission of pornography in spam. Two other men, Andrew D. Ellifson, 31, of Scottsdale, Arizona
Scottsdale, Arizona
Scottsdale is a city in the eastern part of Maricopa County, Arizona, United States, adjacent to Phoenix. According to the U.S. Census Bureau, as of 2010 the population of the city was 217,385...
, and Kirk F. Rogers, 43, of Manhattan Beach, California
Manhattan Beach, California
Manhattan Beach is the wealthiest beachfront city located in southwestern Los Angeles County, California, USA. The city is on the Pacific coast, south of El Segundo, and north of Hermosa Beach. Manhattan Beach is the home of both beach and indoor volleyball, and surfing. During the winter, the...
, also pled guilty to charges under the CAN-SPAM Act related to this spamming operation. Both were scheduled to be sentenced on June 5, 2006 in Phoenix.
On January 16, 2008, Jeffrey Goodin, 45, an Azusa, California
Azusa, California
Azusa is a city in Los Angeles County, California, United States. The population was 46,361 at the 2010 census, up from 44,712 at the 2000 census. Though sometimes assumed to be a compaction of the phrase "everything from A to Z in the USA" from an old Jack Benny joke, the place name "Azusa"...
, man was convicted by a jury in United States district court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
in Los Angeles
Los Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
in United States v. Goodin, U.S. District Court, Central District of California, 06-110, under the CAN-SPAM Act (the first conviction under the Act), and on June 11, 2007, was sentenced to 70 months in federal prison. Out of a potential sentence of 101 years prosecutors had asked for a sentence of 94 months. Goodin was already detained in custody as he had missed a court hearing.
On April 1, 2008, Mounir Balarbi, of Tangier
Tangier
Tangier, also Tangiers is a city in northern Morocco with a population of about 700,000 . It lies on the North African coast at the western entrance to the Strait of Gibraltar where the Mediterranean meets the Atlantic Ocean off Cape Spartel...
, Morocco
Morocco
Morocco , officially the Kingdom of Morocco , is a country located in North Africa. It has a population of more than 32 million and an area of 710,850 km², and also primarily administers the disputed region of the Western Sahara...
, was the first person outside the United States to have an arrest warrant validated under the CAN-SPAM Act of 2003. Mounir's trial was held in absentia, and he was sentenced in a closed session.
As of late 2008, CAN-SPAM has been all but ignored by spammers. A review of spam levels in October 2006 estimated that 75% of all email messages were spam, and the number of spam emails complying with the requirements of the law were estimated to be 0.27% of all spam emails.
By mid 2010, about 90% of email were spam.
Civil enforcement
In July 2005, the Federal Trade Commission lodged civil CAN-SPAM complaints against nine companies alleging that they were responsible for spam emails that had been sent by them or by their affiliates. Six of the seven companies, Cyberheat of Tucson, ArizonaTucson, Arizona
Tucson is a city in and the county seat of Pima County, Arizona, United States. The city is located 118 miles southeast of Phoenix and 60 miles north of the U.S.-Mexico border. The 2010 United States Census puts the city's population at 520,116 with a metropolitan area population at 1,020,200...
,
APC Entertainment, Inc., of Davie, Florida
Davie, Florida
Davie is a town in Broward County, Florida, United States. The town's population was 91,992 at the 2010 census.- History :Davie was founded by Jake Tannebaum and Tamara Toussaint. The original name of the town was Zona. In 1909 R.P. Davie assisted then Governor Broward by draining the swamplands...
,
MD Media, Inc., of Bingham Farms, Michigan
Bingham Farms, Michigan
Bingham Farms is a village in Southfield Township, Oakland County in the U.S. state of Michigan. The population was 1,111 at the 2010 census.-Geography:According to the United States Census Bureau, the village has a total area of , all land.-Demographics:...
,
Pure Marketing Solutions, LLC, of Tampa, Florida
Tampa, Florida
Tampa is a city in the U.S. state of Florida. It serves as the county seat for Hillsborough County. Tampa is located on the west coast of Florida. The population of Tampa in 2010 was 335,709....
, TJ Web Productions, LLC, of Tampa, Florida
Tampa, Florida
Tampa is a city in the U.S. state of Florida. It serves as the county seat for Hillsborough County. Tampa is located on the west coast of Florida. The population of Tampa in 2010 was 335,709....
, and BangBros.com, Inc., RK Netmedia, Inc., and OX Ideas, Inc., LLC, of Miami, Florida
Miami, Florida
Miami is a city located on the Atlantic coast in southeastern Florida and the county seat of Miami-Dade County, the most populous county in Florida and the eighth-most populous county in the United States with a population of 2,500,625...
entered into stipulated consent decrees. Impulse Media Group, Inc. of Seattle, Washington
Seattle, Washington
Seattle is the county seat of King County, Washington. With 608,660 residents as of the 2010 Census, Seattle is the largest city in the Northwestern United States. The Seattle metropolitan area of about 3.4 million inhabitants is the 15th largest metropolitan area in the country...
chose to defend itself against the allegations made by the FTC.
The Department of Justice asserted that the CAN-SPAM statute imposed strict-liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
on producers such as Impulse Media for the actions of its non-agent, independent-contractor affiliates. However, the two courts to consider that argument rejected the DOJ's contention. In March 2008 the remaining defendant, Impulse Media Group, went to trial. At trial, it was determined that IMG's Affiliate Agreement specifically prohibited spam bulk-email and that if an affiliate violated that agreement, it would be terminated from the program. In fact, several affiliates had been terminated for that very reason. After a 2½ day trial, the jury retired to determine whether Impulse Media should be held liable for the bad acts of its affiliates. Three and one-half hours later, the jury returned with a verdict that IMG was not liable and that the emails were the fault of the affiliates.
In March 2006, the FTC was awarded its largest victory to date - a $900,000 judgment against Jumpstart Technologies, LLC for numerous violations of the CAN-SPAM act.
Effectiveness
In 2009, a time series model of spam received in the United States between 1998 and 2008 revealed that the CAN SPAM Act had no significant impact on spamming behavior. Following January, 2004 when the Act went into effect, there was no noticeable decrease in spam rates. Additionally, spam had not been shown to increase in compliance with the regulations set forth in the CAN SPAM Act. Lastly, spam sending bots did not appear to have been displaced outside US jurisdiction after the passing of the Act.See also
General categories:- E-mail spamE-mail spamEmail spam, also known as junk email or unsolicited bulk email , is a subset of spam that involves nearly identical messages sent to numerous recipients by email. Definitions of spam usually include the aspects that email is unsolicited and sent in bulk. One subset of UBE is UCE...
- SpammingSpam (electronic)Spam is the use of electronic messaging systems to send unsolicited bulk messages indiscriminately...
- Suppression listSuppression listA Suppression List is a list of suppressed e-mail addresses used by e-mail senders to comply with the CAN-SPAM Act of 2003. CAN-SPAM requires that senders of commercial emails provide a functioning opt-out mechanism by which email recipients can unsubscribe their email address from future email...
Related acts:
- Junk Fax Prevention Act of 2005Junk Fax Prevention Act of 2005The Junk Fax Prevention Act of 2005, Pub L. No. 109-21, 119 Stat. 359 , was passed by the United States Congress and signed into law by President George W. Bush on July 9, 2005...
- Do-Not-Call Implementation Act of 2003
- Communications Act of 1934Communications Act of 1934The Communications Act of 1934 is a United States federal law, enacted as Public Law Number 416, Act of June 19, 1934, ch. 652, 48 Stat. 1064, by the 73rd Congress, signed by President Franklin D. Roosevelt, codified as Chapter 5 of Title 47 of the United States Code, et seq. The Act replaced the...
External links
- The full text of the Can-Spam Act - HTML
- The full text of the Can-Spam ACT - PDF
- FTC Can-Spam Rules
- FCC Can Spam Act Rules - Background Information
- Cybertelecom :: Can Spam Act
- Hearing on SPAM and Its Effects on Small Business (October 30, 2003), House of Representatives, Committee on Small Business, Subcommittee on Regulatory Reform and Oversight