This article has been written by A Isa Singh, pursuing a Diploma in Technology Law, Fintech Regulations and Technology Contracts from LawSikho. It has been edit by Prashant Bhaviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).
The plight of unsolicited electronic mail or more commonly called Spam email can be understood when the inbox repeatedly conveys the message that it is overloaded and you need to buy more storage space. Spam emails not just clog the inbox but leave a bitter aftertaste on the individual who not only has to review and delete all the messages individually but also has to pay money out of their own pockets to increase their storage space. The macro effect of spam emails can be gauged from the fact that US corporations have to suffer the loss of millions of dollars. To analyze, Controlling the assault of Non-Solicited Pornography and Marketing Act 2003 shortly know as CAN-SPAM ACT, we need to first understand the background of the spam problem and the menace it caused which led to the creation of the act by the Congress.
What is a spam?
Spam is the popular name given to unsolicited electronic mail mostly confined to bulk mail or unsolicited commercial e-mails. There are certain advertisements in which the individuals and even the companies subscribe to any information from such emails that do not spam as they have received the consent of the receiver. The bulk emails which are sent to people who have not asked for such information constitute spam. In the year 2010, an estimated 88 percent of the world’s email traffic was spam.Seeing the sheer magnitude of the problem, the US congress came up with the CAN-SPAM Act.
Reason for enactment
The bulk unsolicited commercial emails that the receiver receives without consent results in a huge waste of time and resources as the recipient has to review each and every email to assess the value and it also costs him storage space. The spam messages cause communication overload and have a bearing on the communication traffic which in turn has to be restructured by the user or the internet provider.
The primary reason for the enactment of this Act is to avoid turning a user into a waste detection technician. Besides this, many spam emails contain vulgar and pornographic content. Such contents are used to lure the user to open links that may be infested with some virus and may result in system corruption. Spam emails use disguises to hide the source of the email and they have no address to trace the actual generator of the email which makes it a nuisance for not just the authorities but also the users.
Some of the other concerns regarding unsolicited commercial emails are that they contain misleading information or subject lines in order to attract an individual’s attention to the messages. The lack of opt-out option in some emails make it a constant problem for the receiver in future too as they cannot request the sender to stop bothering them. These were some of the reasons for bringing the CAN-SPAM Act by the congress.
Scope of the Act
The CAN-SPAM Act encompasses all the individuals, whether natural or legal. In the US it also covers all those sending emails from abroad to users in the USA. The Act covers all commercial electronic mail messages whose main motive is the promotion of a commercial product. But it doesn’t entail within its ambit transactional or relationship messages. The transaction or relationship messages are the messages which do the work of confirming a transaction entered by the recipient, provides information with regard to warranty or product safety, and is regarding updating of a status or account balance sheet.
Principal obligations of the sender under the Act
The sender of the email should make sure that the commercial emails sent have an opt-out option which gives the receiver a chance to forgo future messages. Such return options or opt-out messages should be present for a duration of at least 30 days since the day the message was sent out by the sender. Once the sender receives an opt-out message or information from the receiver it has a duty to comply with the wishes of the receiver within a duration of 10 days. Any other message sent after the duration of 10 days would be regarded as illegal.
The Act makes it unlawful for a sender of a commercial electronic message or transactional or relationship message to use a header that contains misleading information in the header about the message within. It is therefore important to understand what would constitute misleading information. When the origination address that is the front line in case of an email and the exact accuracy of the header information is analyzed, it should be precise. If it is later found out that the IP address, domain name etc. is obtained by falsely misrepresenting etc. the message would be regarded as misleading.
If the header is not successful in identifying the sender or tries to conceal the sender it would also be regarded as a misleading message.
The sender of the message should make sure that the information sent clearly states that the specific message is an advertisement. It should also have a clear native about the opt-out option for future emails. With all this information the sender should also include his physical postal address.
Aggravated violations related to commercial electronic mail
Creation of multiple electronic mails
It is unlawful for any person to create different email accounts which are used to send emails to protected computers or to send emails that have been explicitly prohibited by the Act.
It is unlawful for a person to relay or retransfer a commercial electronic message which is unlawful in nature or from a computer that was accessed without authority.
Address harvesting or dictionary attacks
It is a process by which spammers obtain bulk emails using software like harvesting bots or through automated means from the internet using a site that specifically states that it refuses to sell or transfer user addresses. Using automated systems like dictionary attacks which use pre-arranged strings to generate bulk spam mails etc. will be a part of aggravated violations.
Warning labels for sexual content
The CAN-SPAM Act makes it compulsory to include in the subject line or header that the information which is further provided is of a sexual nature. The commercial electronic mail which contains sexually explicit content which is not subscribed by the receiver should have a warning in the subject line as well as the body of the message. The subject line can include the warning by stating in bold that it is ‘SEXUALLY EXPLICIT’. The department of justice could levy fines and/or imprisonment for a duration of five years for not complying with the sexual content warning.
Private right of action
The CAN-SPAM Act besides giving the state the responsibility of prosecuting the offender also has a provision for a private right of action by an internet access service provider who has been affected by the violation of the act. A private service provider can demand injunctive relief, recover monetary damages based on the number of unwanted messages. In the case of Myspace v. The Globe.com it was for the first time that a social networking site bought a lawsuit under the act. The Californian court found that Myspace has a standing to bring an action against Globe.com. This landmark judgement cost The Globe.com $5.5 million dollars. A similar judgement was passed in the case of Facebook v. ConnectU. In this particular case, Facebook alleged that Connect U collected the electronic mails of their users and sent unsolicited electronic messages which violated the CAN-SPAM Act. It was held that to uphold Facebook’s claim it is to be proved that the opposing party sent misleading emails to the users.
By bringing an act like CAN-SPAM, Congress has showcased its resolve of solving the increasing menace of unsolicited electronic message senders who clog the system. The act has taken sufficient measures such as having precise guidelines with regard to headline, the subject line being exactly what the content of the email would entail. The declaration of the fact that the email which is sent is an advertisement which not just saves the time of the receiver also gives them a choice whether to access and review the consent. With the warning which is provided by the act in relation to sexual content, it helps to save young people from sexually explicit content and upholds the right of choice of the viewer who didn’t in the first hand want to view such content.
Last but not least, the compulsory provision of providing the opt-out option by the sender would help the receiver from blocking out unwanted emails, and save themselves the time to individually delete each message from the inbox. With the world moving towards an era where most of the work personal or professional would happen online legislation like CAN-SPAM would not just save individual time and resources but would save millions of dollars which are lost by the corporations.
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