Difference between revisions of "CAN-SPAM Act"

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[https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=cea8be427690a26231dda41b8ccb5f75&ty=HTML&h=L&n=16y1.0.1.3.40&r=PART CAN-SPAM Act of 2003]
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{{Law
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|Short title=Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
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'''Text of Law'''
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|Official text=https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=cea8be427690a26231dda41b8ccb5f75&ty=HTML&h=L&n=16y1.0.1.3.40&r=PART
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|Country/Jurisdiction=United States
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§316.3  Primary purpose.
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|Date enacted=2003
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(a) In applying the term “commercial electronic mail message” defined in the CAN-SPAM Act, 15 U.S.C. 7702(2), the “primary purpose” of an electronic mail message shall be deemed to be commercial based on the criteria in paragraphs (a)(1) through (3) and (b) of this section:
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|Scope of the law=Individual, Group, Unincorporated Association, Limited or General Partnership, Corporation, or Other Business Entity
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|Categories of personal information covered=Contact
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The Commission does not intend for these criteria to treat as a “commercial electronic mail message” anything that is not commercial speech.
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|Short summary introduction=The purpose of the CAN-SPAM Act is to protect individuals from inappropriate electronic commercial messages. The Act precludes individuals from charging for opt-out the electronic commercial messages.
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|Text of the law=§316.4  Requirement to place warning labels on commercial electronic mail that contains sexually oriented material.
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(1) If an electronic mail message consists exclusively of the commercial advertisement or promotion of a commercial product or service, then the “primary purpose” of the message shall be deemed to be commercial.
 
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(2) If an electronic mail message contains both the commercial advertisement or promotion of a commercial product or service as well as transactional or relationship content as set forth in paragraph (c) of this section, then the “primary purpose” of the message shall be deemed to be commercial if:
 
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(i) A recipient reasonably interpreting the subject line of the electronic mail message would likely conclude that the message contains the commercial advertisement or promotion of a commercial product or service; or
 
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(ii) The electronic mail message's transactional or relationship content as set forth in paragraph (c) of this section does not appear, in whole or in substantial part, at the beginning of the body of the message.
 
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(3) If an electronic mail message contains both the commercial advertisement or promotion of a commercial product or service as well as other content that is not transactional or relationship content as set forth in paragraph (c) of this section, then the “primary purpose” of the message shall be deemed to be commercial if:
 
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(i) A recipient reasonably interpreting the subject line of the electronic mail message would likely conclude that the message contains the commercial advertisement or promotion of a commercial product or service; or
 
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(ii) A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is the commercial advertisement or promotion of a commercial product or service. Factors illustrative of those relevant to this interpretation include the placement of content that is the commercial advertisement or promotion of a commercial product or service, in whole or in substantial part, at the beginning of the body of the message; the proportion of the message dedicated to such content; and how color, graphics, type size, and style are used to highlight commercial content.
 
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(b) In applying the term “transactional or relationship message” defined in the CAN-SPAM Act, 15 U.S.C. 7702(17), the “primary purpose” of an electronic mail message shall be deemed to be transactional or relationship if the electronic mail message consists exclusively of transactional or relationship content as set forth in paragraph (c) of this section.
 
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(c) Transactional or relationship content of email messages under the CAN-SPAM Act is content:
 
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(1) To facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;
 
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(2) To provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
 
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(3) With respect to a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender, to provide —
 
  
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(i) Notification concerning a change in the terms or features;
 
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(ii) Notification of a change in the recipient's standing or status; or
 
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(iii) At regular periodic intervals, account balance information or other type of account statement;
 
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(4) To provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or
 
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(5) To deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.§316.4  Requirement to place warning labels on commercial electronic mail that contains sexually oriented material.
 
 
(a) Any person who initiates, to a protected computer, the transmission of a commercial electronic mail message that includes sexually oriented material must:
 
(a) Any person who initiates, to a protected computer, the transmission of a commercial electronic mail message that includes sexually oriented material must:
  
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(1) Exclude sexually oriented materials from the subject heading for the electronic mail message and include in the subject heading the phrase “SEXUALLY-EXPLICIT: ” in capital letters as the first nineteen (19) characters at the beginning of the subject line;2
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(1) Exclude sexually oriented materials from the subject heading for the electronic mail message and include in the subject heading the phrase “SEXUALLY-EXPLICIT: ” in capital letters as the first nineteen (19) characters at the beginning of the subject line;
  
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2The phrase “SEXUALLY-EXPLICIT” comprises 17 characters, including the dash between the two words. The colon (:) and the space following the phrase are the 18th and 19th characters.
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The phrase “SEXUALLY-EXPLICIT” comprises 17 characters, including the dash between the two words. The colon and the space following the phrase are the 18th and 19th characters.
  
 
(2) Provide that the content of the message that is initially viewable by the recipient, when the message is opened by any recipient and absent any further actions by the recipient, include only the following information:
 
(2) Provide that the content of the message that is initially viewable by the recipient, when the message is opened by any recipient and absent any further actions by the recipient, include only the following information:
  
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(i) The phrase “SEXUALLY-EXPLICIT: ” in a clear and conspicuous manner;3
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(i) The phrase “SEXUALLY-EXPLICIT: ” in a clear and conspicuous manner;
  
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3This phrase consists of nineteen (19) characters and is identical to the phrase required in 316.5(a)(1) of this Rule.
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This phrase consists of nineteen (19) characters and is identical to the phrase required in 316.5(a)(1) of this Rule.
  
 
(ii) Clear and conspicuous identification that the message is an advertisement or solicitation;
 
(ii) Clear and conspicuous identification that the message is an advertisement or solicitation;
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(iv) A functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that
 
(iv) A functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that
  
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(A) A recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and
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{{SectionHarm|Section=(A) A recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and|Harms=Decisional Interference}}
  
 
(B) Remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message;
 
(B) Remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message;
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(vi) Any needed instructions on how to access, or activate a mechanism to access, the sexually oriented material, preceded by a clear and conspicuous statement that to avoid viewing the sexually oriented material, a recipient should delete the email message without following such instructions.
 
(vi) Any needed instructions on how to access, or activate a mechanism to access, the sexually oriented material, preceded by a clear and conspicuous statement that to avoid viewing the sexually oriented material, a recipient should delete the email message without following such instructions.
  
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(b) Prior affirmative consent. Paragraph (a) does not apply to the transmission of an electronic mail message if the recipient has given prior affirmative consent to receipt of the message.§316.5  Prohibition on charging a fee or imposing other requirements on recipients who wish to opt out.
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(b) Prior affirmative consent.  
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Neither a sender nor any person acting on behalf of a sender may require that any recipient pay any fee, provide any information other than the recipient's electronic mail address and opt-out preferences, or take any other steps except sending a reply electronic mail message or visiting a single Internet Web page, in order to:
 
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(a) Use a return electronic mail address or other Internet-based mechanism, required by 15 U.S.C. 7704(a)(3), to submit a request not to receive future commercial electronic mail messages from a sender; or
 
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(b) Have such a request honored as required by 15 U.S.C. 7704(a)(3)(B) and (a)(4).
 
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|§316.3-appropriation
 
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|Business/Financial
 
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|CAN-SPAM (Controlling The Assault of Non-Solicited Pornography and Marketing) (2003)
 
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|§7703. Prohibition against predatory and abusive commercial e-mail
 
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(a) Omitted
 
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(b) United States Sentencing Commission
 
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(1) Directive
 
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Pursuant to its authority under section 994(p) of title 28 and in accordance with this section, the United States Sentencing Commission shall review and, as appropriate, amend the sentencing guidelines and policy statements to provide appropriate penalties for violations of section 1037 of title 18, as added by this section, and other offenses that may be facilitated by the sending of large quantities of unsolicited electronic mail.
 
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(2) Requirements
 
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In carrying out this subsection, the Sentencing Commission shall consider providing sentencing enhancements for—
 
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(A) those convicted under section 1037 of title 18 who—
 
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(i) obtained electronic mail addresses through improper means, including—
 
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(I) harvesting electronic mail addresses of the users of a website, proprietary service, or other online public forum operated by another person, without the authorization of such person; and
 
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(II) randomly generating electronic mail addresses by computer; or
 
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(ii) knew that the commercial electronic mail messages involved in the offense contained or advertised an Internet domain for which the registrant of the domain had provided false registration information; and
 
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(B) those convicted of other offenses, including offenses involving fraud, identity theft, obscenity, child pornography, and the sexual exploitation of children, if such offenses involved the sending of large quantities of electronic mail.
 
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(c) Sense of Congress
 
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It is the sense of Congress that—
 
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(1) Spam has become the method of choice for those who distribute pornography, perpetrate fraudulent schemes, and introduce viruses, worms, and Trojan horses into personal and business computer systems; and
 
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(2) the Department of Justice should use all existing law enforcement tools to investigate and prosecute those who send bulk commercial e-mail to facilitate the commission of Federal crimes, including the tools contained in chapters 47 and 63 of title 18 (relating to fraud and false statements); chapter 71 of title 18 (relating to obscenity); chapter 110 of title 18 (relating to the sexual exploitation of children); and chapter 95 of title 18 (relating to racketeering), as appropriate.§7704. Other protections for users of commercial electronic mail
 
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(a) Requirements for transmission of messages
 
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(1) Prohibition of false or misleading transmission information
 
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It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transactional or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading. For purposes of this paragraph—
 
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(A) header information that is technically accurate but includes an originating electronic mail address, domain name, or Internet Protocol address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses or representations shall be considered materially misleading;
 
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(B) a "from" line (the line identifying or purporting to identify a person initiating the message) that accurately identifies any person who initiated the message shall not be considered materially false or materially misleading; and
 
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(C) header information shall be considered materially misleading if it fails to identify accurately a protected computer used to initiate the message because the person initiating the message knowingly uses another protected computer to relay or retransmit the message for purposes of disguising its origin.
 
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(2) Prohibition of deceptive subject headings
 
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It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message if such person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message (consistent with the criteria used in enforcement of section 45 of this title).
 
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(3) Inclusion of return address or comparable mechanism in commercial electronic mail
 
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(A) In general
 
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It is unlawful for any person to initiate the transmission to a protected computer of a commercial electronic mail message that does not contain a functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that—
 
  
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(i) a recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and
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Paragraph (a) does not apply to the transmission of an electronic mail message if the recipient has given prior affirmative consent to receipt of the message.
  
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(ii) remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message.
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{{SectionHarm|Section=§316.5  Prohibition on charging a fee or imposing other requirements on recipients who wish to opt out.|Harms=Decisional Interference}}
  
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(B) More detailed options possible
 
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The person initiating a commercial electronic mail message may comply with subparagraph (A)(i) by providing the recipient a list or menu from which the recipient may choose the specific types of commercial electronic mail messages the recipient wants to receive or does not want to receive from the sender, if the list or menu includes an option under which the recipient may choose not to receive any commercial electronic mail messages from the sender.
 
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(C) Temporary inability to receive messages or process requests
 
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A return electronic mail address or other mechanism does not fail to satisfy the requirements of subparagraph (A) if it is unexpectedly and temporarily unable to receive messages or process requests due to a technical problem beyond the control of the sender if the problem is corrected within a reasonable time period.
 
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(4) Prohibition of transmission of commercial electronic mail after objection
 
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(A) In general
 
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If a recipient makes a request using a mechanism provided pursuant to paragraph (3) not to receive some or any commercial electronic mail messages from such sender, then it is unlawful—
 
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(i) for the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request;
 
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(ii) for any person acting on behalf of the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that such message falls within the scope of the request;
 
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(iii) for any person acting on behalf of the sender to assist in initiating the transmission to the recipient, through the provision or selection of addresses to which the message will be sent, of a commercial electronic mail message with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that such message would violate clause (i) or (ii); or
 
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(iv) for the sender, or any other person who knows that the recipient has made such a request, to sell, lease, exchange, or otherwise transfer or release the electronic mail address of the recipient (including through any transaction or other transfer involving mailing lists bearing the electronic mail address of the recipient) for any purpose other than compliance with this chapter or other provision of law.
 
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(B) Subsequent affirmative consent
 
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A prohibition in subparagraph (A) does not apply if there is affirmative consent by the recipient subsequent to the request under subparagraph (A).
 
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(5) Inclusion of identifier, opt-out, and physical address in commercial electronic mail
 
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(A) It is unlawful for any person to initiate the transmission of any commercial electronic mail message to a protected computer unless the message provides—
 
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(i) clear and conspicuous identification that the message is an advertisement or solicitation;
 
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(ii) clear and conspicuous notice of the opportunity under paragraph (3) to decline to receive further commercial electronic mail messages from the sender; and
 
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(iii) a valid physical postal address of the sender.
 
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(B) Subparagraph (A)(i) does not apply to the transmission of a commercial electronic mail message if the recipient has given prior affirmative consent to receipt of the message.
 
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(6) Materially
 
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For purposes of paragraph (1), the term "materially", when used with respect to false or misleading header information, includes the alteration or concealment of header information in a manner that would impair the ability of an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation, or the ability of a recipient of the message to respond to a person who initiated the electronic message.
 
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(b) Aggravated violations relating to commercial electronic mail
 
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(1) Address harvesting and dictionary attacks
 
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(A) In general
 
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It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message that is unlawful under subsection (a), or to assist in the origination of such message through the provision or selection of addresses to which the message will be transmitted, if such person had actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that—
 
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(i) the electronic mail address of the recipient was obtained using an automated means from an Internet website or proprietary online service operated by another person, and such website or online service included, at the time the address was obtained, a notice stating that the operator of such website or online service will not give, sell, or otherwise transfer addresses maintained by such website or online service to any other party for the purposes of initiating, or enabling others to initiate, electronic mail messages; or
 
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(ii) the electronic mail address of the recipient was obtained using an automated means that generates possible electronic mail addresses by combining names, letters, or numbers into numerous permutations.
 
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(B) Disclaimer
 
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Nothing in this paragraph creates an ownership or proprietary interest in such electronic mail addresses.
 
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(2) Automated creation of multiple electronic mail accounts
 
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It is unlawful for any person to use scripts or other automated means to register for multiple electronic mail accounts or online user accounts from which to transmit to a protected computer, or enable another person to transmit to a protected computer, a commercial electronic mail message that is unlawful under subsection (a).
 
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(3) Relay or retransmission through unauthorized access
 
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It is unlawful for any person knowingly to relay or retransmit a commercial electronic mail message that is unlawful under subsection (a) from a protected computer or computer network that such person has accessed without authorization.
 
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(c) Supplementary rulemaking authority
 
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The Commission shall by regulation, pursuant to section 7711 of this title—
 
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(1) modify the 10-business-day period under subsection (a)(4)(A) or subsection (a)(4)(B), or both, if the Commission determines that a different period would be more reasonable after taking into account—
 
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(A) the purposes of subsection (a);
 
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(B) the interests of recipients of commercial electronic mail; and
 
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(C) the burdens imposed on senders of lawful commercial electronic mail; and
 
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(2) specify additional activities or practices to which subsection (b) applies if the Commission determines that those activities or practices are contributing substantially to the proliferation of commercial electronic mail messages that are unlawful under subsection (a).
 
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(d) Requirement to place warning labels on commercial electronic mail containing sexually oriented material
 
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(1) In general
 
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No person may initiate in or affecting interstate commerce the transmission, to a protected computer, of any commercial electronic mail message that includes sexually oriented material and—
 
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(A) fail to include in subject heading for the electronic mail message the marks or notices prescribed by the Commission under this subsection; or
 
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(B) fail to provide that the matter in the message that is initially viewable to the recipient, when the message is opened by any recipient and absent any further actions by the recipient, includes only—
 
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(i) to the extent required or authorized pursuant to paragraph (2), any such marks or notices;
 
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(ii) the information required to be included in the message pursuant to subsection (a)(5); and
 
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(iii) instructions on how to access, or a mechanism to access, the sexually oriented material.
 
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(2) Prior affirmative consent
 
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Paragraph (1) does not apply to the transmission of an electronic mail message if the recipient has given prior affirmative consent to receipt of the message.
 
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(3) Prescription of marks and notices
 
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Not later than 120 days after December 16, 2003, the Commission in consultation with the Attorney General shall prescribe clearly identifiable marks or notices to be included in or associated with commercial electronic mail that contains sexually oriented material, in order to inform the recipient of that fact and to facilitate filtering of such electronic mail. The Commission shall publish in the Federal Register and provide notice to the public of the marks or notices prescribed under this paragraph.
 
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(4) Definition
 
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In this subsection, the term "sexually oriented material" means any material that depicts sexually explicit conduct (as that term is defined in section 2256 of title 18), unless the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters.
 
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(5) Penalty
 
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Whoever knowingly violates paragraph (1) shall be fined under title 18, or imprisoned not more than 5 years, or both.§7705. Businesses knowingly promoted by electronic mail with false or misleading transmission information
 
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(a) In general
 
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It is unlawful for a person to promote, or allow the promotion of, that person's trade or business, or goods, products, property, or services sold, offered for sale, leased or offered for lease, or otherwise made available through that trade or business, in a commercial electronic mail message the transmission of which is in violation of section 7704(a)(1) of this title if that person—
 
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(1) knows, or should have known in the ordinary course of that person's trade or business, that the goods, products, property, or services sold, offered for sale, leased or offered for lease, or otherwise made available through that trade or business were being promoted in such a message;
 
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(2) received or expected to receive an economic benefit from such promotion; and
 
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(3) took no reasonable action—
 
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(A) to prevent the transmission; or
 
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(B) to detect the transmission and report it to the Commission.
 
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(b) Limited enforcement against third parties
 
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(1) In general
 
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Except as provided in paragraph (2), a person (hereinafter referred to as the "third party") that provides goods, products, property, or services to another person that violates subsection (a) shall not be held liable for such violation.
 
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(2) Exception
 
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Liability for a violation of subsection (a) shall be imputed to a third party that provides goods, products, property, or services to another person that violates subsection (a) if that third party—
 
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(A) owns, or has a greater than 50 percent ownership or economic interest in, the trade or business of the person that violated subsection (a); or
 
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(B)(i) has actual knowledge that goods, products, property, or services are promoted in a commercial electronic mail message the transmission of which is in violation of section 7704(a)(1) of this title; and
 
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(ii) receives, or expects to receive, an economic benefit from such promotion.
 
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(c) Exclusive enforcement by FTC
 
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Subsections (f) and (g) of section 7706 of this title do not apply to violations of this section.
 
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(d) Savings provision
 
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Except as provided in section 7706(f)(8) of this title, nothing in this section may be construed to limit or prevent any action that may be taken under this chapter with respect to any violation of any other section of this chapter.§7706. Enforcement generally
 
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(a) Violation is unfair or deceptive act or practice
 
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Except as provided in subsection (b), this chapter shall be enforced by the Commission as if the violation of this chapter were an unfair or deceptive act or practice proscribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
 
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(b) Enforcement by certain other agencies
 
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Compliance with this chapter shall be enforced—
 
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(1) under section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818), in the case of—
 
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(A) national banks, and Federal branches and Federal agencies of foreign banks, by the Office of the Comptroller of the Currency;
 
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(B) member banks of the Federal Reserve System (other than national banks), branches and agencies of foreign banks (other than Federal branches, Federal agencies, and insured State branches of foreign banks), commercial lending companies owned or controlled by foreign banks, organizations operating under section 25 or 25A of the Federal Reserve Act (12 U.S.C. 601 and 611), and bank holding companies, by the Board;
 
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(C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System) and insured State branches of foreign banks, by the Board of Directors of the Federal Deposit Insurance Corporation; and
 
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(D) savings associations the deposits of which are insured by the Federal Deposit Insurance Corporation, by the Director of the Office of Thrift Supervision;
 
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(2) under the Federal Credit Union Act (12 U.S.C. 1751 et seq.) by the Board of the National Credit Union Administration with respect to any Federally insured credit union;
 
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(3) under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) by the Securities and Exchange Commission with respect to any broker or dealer;
 
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(4) under the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.) by the Securities and Exchange Commission with respect to investment companies;
 
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(5) under the Investment Advisers Act of 1940 (15 U.S.C. 80b–1 et seq.) by the Securities and Exchange Commission with respect to investment advisers registered under that Act;
 
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(6) under State insurance law in the case of any person engaged in providing insurance, by the applicable State insurance authority of the State in which the person is domiciled, subject to section 104 of the Gramm-Bliley-Leach Act (15 U.S.C. 6701), except that in any State in which the State insurance authority elects not to exercise this power, the enforcement authority pursuant to this chapter shall be exercised by the Commission in accordance with subsection (a);
 
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(7) under part A of subtitle VII of title 49 by the Secretary of Transportation with respect to any air carrier or foreign air carrier subject to that part;
 
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(8) under the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.) (except as provided in section 406 of that Act (7 U.S.C. 226, 227)), by the Secretary of Agriculture with respect to any activities subject to that Act;
 
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(9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) by the Farm Credit Administration with respect to any Federal land bank, Federal land bank association, Federal intermediate credit bank, or production credit association; and
 
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(10) under the Communications Act of 1934 (47 U.S.C. 151 et seq.) by the Federal Communications Commission with respect to any person subject to the provisions of that Act.
 
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(c) Exercise of certain powers
 
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For the purpose of the exercise by any agency referred to in subsection (b) of its powers under any Act referred to in that subsection, a violation of this chapter is deemed to be a violation of a Federal Trade Commission trade regulation rule. In addition to its powers under any provision of law specifically referred to in subsection (b), each of the agencies referred to in that subsection may exercise, for the purpose of enforcing compliance with any requirement imposed under this chapter, any other authority conferred on it by law.
 
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(d) Actions by the Commission
 
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The Commission shall prevent any person from violating this chapter in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this chapter. Any entity that violates any provision of that subtitle 1 is subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act in the same manner, by the same means, and with the same jurisdiction, power, and duties as though all applicable terms and provisions of the Federal Trade Commission Act were incorporated into and made a part of that subtitle.1
 
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(e) Availability of cease-and-desist orders and injunctive relief without showing of knowledge
 
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Notwithstanding any other provision of this chapter, in any proceeding or action pursuant to subsection (a), (b), (c), or (d) of this section to enforce compliance, through an order to cease and desist or an injunction, with section 7704(a)(1)(C) of this title, section 7704(a)(2) of this title, clause (ii), (iii), or (iv) of section 7704(a)(4)(A) of this title, section 7704(b)(1)(A) of this title, or section 7704(b)(3) of this title, neither the Commission nor the Federal Communications Commission shall be required to allege or prove the state of mind required by such section or subparagraph.
 
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(f) Enforcement by States
 
−
(1) Civil action
 
−
In any case in which the attorney general of a State, or an official or agency of a State, has reason to believe that an interest of the residents of that State has been or is threatened or adversely affected by any person who violates paragraph (1) or (2) of section 7704(a), who violates section 7704(d), or who engages in a pattern or practice that violates paragraph (3), (4), or (5) of section 7704(a), of this title, the attorney general, official, or agency of the State, as parens patriae, may bring a civil action on behalf of the residents of the State in a district court of the United States of appropriate jurisdiction—
 
−
 
−
(A) to enjoin further violation of section 7704 of this title by the defendant; or
 
−
 
−
(B) to obtain damages on behalf of residents of the State, in an amount equal to the greater of—
 
−
 
−
(i) the actual monetary loss suffered by such residents; or
 
−
 
−
(ii) the amount determined under paragraph (3).
 
−
 
−
(2) Availability of injunctive relief without showing of knowledge
 
−
Notwithstanding any other provision of this chapter, in a civil action under paragraph (1)(A) of this subsection, the attorney general, official, or agency of the State shall not be required to allege or prove the state of mind required by section 7704(a)(1)(C) of this title, section 7704(a)(2) of this title, clause (ii), (iii), or (iv) of section 7704(a)(4)(A) of this title, section 7704(b)(1)(A) of this title, or section 7704(b)(3) of this title.
 
−
 
−
(3) Statutory damages
 
−
(A) In general
 
−
For purposes of paragraph (1)(B)(ii), the amount determined under this paragraph is the amount calculated by multiplying the number of violations (with each separately addressed unlawful message received by or addressed to such residents treated as a separate violation) by up to $250.
 
−
 
−
(B) Limitation
 
−
For any violation of section 7704 of this title (other than section 7704(a)(1) of this title), the amount determined under subparagraph (A) may not exceed $2,000,000.
 
−
 
−
(C) Aggravated damages
 
−
The court may increase a damage award to an amount equal to not more than three times the amount otherwise available under this paragraph if—
 
−
 
−
(i) the court determines that the defendant committed the violation willfully and knowingly; or
 
−
 
−
(ii) the defendant's unlawful activity included one or more of the aggravating violations set forth in section 7704(b) of this title.
 
−
 
−
(D) Reduction of damages
 
−
In assessing damages under subparagraph (A), the court may consider whether—
 
−
 
−
(i) the defendant has established and implemented, with due care, commercially reasonable practices and procedures designed to effectively prevent such violations; or
 
−
 
−
(ii) the violation occurred despite commercially reasonable efforts to maintain compliance the practices and procedures to which reference is made in clause (i).
 
−
 
−
(4) Attorney fees
 
−
In the case of any successful action under paragraph (1), the court, in its discretion, may award the costs of the action and reasonable attorney fees to the State.
 
−
 
−
(5) Rights of Federal regulators
 
−
The State shall serve prior written notice of any action under paragraph (1) upon the Federal Trade Commission or the appropriate Federal regulator determined under subsection (b) and provide the Commission or appropriate Federal regulator with a copy of its complaint, except in any case in which such prior notice is not feasible, in which case the State shall serve such notice immediately upon instituting such action. The Federal Trade Commission or appropriate Federal regulator shall have the right—
 
−
 
−
(A) to intervene in the action;
 
−
 
−
(B) upon so intervening, to be heard on all matters arising therein;
 
−
 
−
(C) to remove the action to the appropriate United States district court; and
 
−
 
−
(D) to file petitions for appeal.
 
−
 
−
(6) Construction
 
−
For purposes of bringing any civil action under paragraph (1), nothing in this chapter shall be construed to prevent an attorney general of a State from exercising the powers conferred on the attorney general by the laws of that State to—
 
−
 
−
(A) conduct investigations;
 
−
 
−
(B) administer oaths or affirmations; or
 
−
 
−
(C) compel the attendance of witnesses or the production of documentary and other evidence.
 
−
 
−
(7) Venue; service of process
 
−
(A) Venue
 
−
Any action brought under paragraph (1) may be brought in the district court of the United States that meets applicable requirements relating to venue under section 1391 of title 28.
 
−
 
−
(B) Service of process
 
−
In an action brought under paragraph (1), process may be served in any district in which the defendant—
 
−
 
−
(i) is an inhabitant; or
 
−
 
−
(ii) maintains a physical place of business.
 
−
 
−
(8) Limitation on State action while Federal action is pending
 
−
If the Commission, or other appropriate Federal agency under subsection (b), has instituted a civil action or an administrative action for violation of this chapter, no State attorney general, or official or agency of a State, may bring an action under this subsection during the pendency of that action against any defendant named in the complaint of the Commission or the other agency for any violation of this chapter alleged in the complaint.
 
−
 
−
(9) Requisite scienter for certain civil actions
 
−
Except as provided in section 7704(a)(1)(C) of this title, section 7704(a)(2) of this title, clause (ii), (iii), or (iv) of section 7704(a)(4)(A) of this title, section 7704(b)(1)(A) of this title, or section 7704(b)(3) of this title, in a civil action brought by a State attorney general, or an official or agency of a State, to recover monetary damages for a violation of this chapter, the court shall not grant the relief sought unless the attorney general, official, or agency establishes that the defendant acted with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, of the act or omission that constitutes the violation.
 
−
 
−
(g) Action by provider of Internet access service
 
−
(1) Action authorized
 
−
A provider of Internet access service adversely affected by a violation of section 7704(a)(1), (b), or (d) of this title, or a pattern or practice that violates paragraph (2), (3), (4), or (5) of section 7704(a) of this title, may bring a civil action in any district court of the United States with jurisdiction over the defendant—
 
−
 
−
(A) to enjoin further violation by the defendant; or
 
−
 
−
(B) to recover damages in an amount equal to the greater of—
 
−
 
−
(i) actual monetary loss incurred by the provider of Internet access service as a result of such violation; or
 
−
 
−
(ii) the amount determined under paragraph (3).
 
−
 
−
(2) Special definition of "procure"
 
−
In any action brought under paragraph (1), this chapter shall be applied as if the definition of the term "procure" in section 7702(12) of this title contained, after "behalf" the words "with actual knowledge, or by consciously avoiding knowing, whether such person is engaging, or will engage, in a pattern or practice that violates this chapter".
 
−
 
−
(3) Statutory damages
 
−
(A) In general
 
−
For purposes of paragraph (1)(B)(ii), the amount determined under this paragraph is the amount calculated by multiplying the number of violations (with each separately addressed unlawful message that is transmitted or attempted to be transmitted over the facilities of the provider of Internet access service, or that is transmitted or attempted to be transmitted to an electronic mail address obtained from the provider of Internet access service in violation of section 7704(b)(1)(A)(i) of this title, treated as a separate violation) by—
 
−
 
−
(i) up to $100, in the case of a violation of section 7704(a)(1) of this title; or
 
−
 
−
(ii) up to $25, in the case of any other violation of section 7704 of this title.
 
−
 
−
(B) Limitation
 
−
For any violation of section 7704 of this title (other than section 7704(a)(1) of this title), the amount determined under subparagraph (A) may not exceed $1,000,000.
 
−
 
−
(C) Aggravated damages
 
−
The court may increase a damage award to an amount equal to not more than three times the amount otherwise available under this paragraph if—
 
−
 
−
(i) the court determines that the defendant committed the violation willfully and knowingly; or
 
−
 
−
(ii) the defendant's unlawful activity included one or more of the aggravated violations set forth in section 7704(b) of this title.
 
−
 
−
(D) Reduction of damages
 
−
In assessing damages under subparagraph (A), the court may consider whether—
 
−
 
−
(i) the defendant has established and implemented, with due care, commercially reasonable practices and procedures designed to effectively prevent such violations; or
 
−
 
−
(ii) the violation occurred despite commercially reasonable efforts to maintain compliance with the practices and procedures to which reference is made in clause (i).
 
−
 
−
(4) Attorney fees
 
−
In any action brought pursuant to paragraph (1), the court may, in its discretion, require an undertaking for the payment of the costs of such action, and assess reasonable costs, including reasonable attorneys' fees, against any party.
 
−
 
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'''Related harms under the Solove Taxonomy:''' §7703.- Appropriation, (2)-Distortion, (B)(c)-Insecurity, (B)(6)-Aggregation
 
−
 
−
'''Scope of the law''' ''Business/Financial''
 
−
 
−
 
−
'''CAN-SPAM Amendments 16 CFR Part 316 (Controlling the Assault of Non-Solicited Pornography And Marketing Act) (2008)'''
 
−
 
−
'''Text of Law'''
 
−
 
−
§316.3  Primary purpose.
 
−
(a) In applying the term “commercial electronic mail message” defined in the CAN-SPAM Act, 15 U.S.C. 7702(2), the “primary purpose” of an electronic mail message shall be deemed to be commercial based on the criteria in paragraphs (a)(1) through (3) and (b) of this section:1
 
−
 
−
1The Commission does not intend for these criteria to treat as a “commercial electronic mail message” anything that is not commercial speech.
 
−
 
−
(1) If an electronic mail message consists exclusively of the commercial advertisement or promotion of a commercial product or service, then the “primary purpose” of the message shall be deemed to be commercial.
 
−
 
−
(2) If an electronic mail message contains both the commercial advertisement or promotion of a commercial product or service as well as transactional or relationship content as set forth in paragraph (c) of this section, then the “primary purpose” of the message shall be deemed to be commercial if:
 
−
 
−
(i) A recipient reasonably interpreting the subject line of the electronic mail message would likely conclude that the message contains the commercial advertisement or promotion of a commercial product or service; or
 
−
 
−
(ii) The electronic mail message's transactional or relationship content as set forth in paragraph (c) of this section does not appear, in whole or in substantial part, at the beginning of the body of the message.
 
−
 
−
(3) If an electronic mail message contains both the commercial advertisement or promotion of a commercial product or service as well as other content that is not transactional or relationship content as set forth in paragraph (c) of this section, then the “primary purpose” of the message shall be deemed to be commercial if:
 
−
 
−
(i) A recipient reasonably interpreting the subject line of the electronic mail message would likely conclude that the message contains the commercial advertisement or promotion of a commercial product or service; or
 
−
 
−
(ii) A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is the commercial advertisement or promotion of a commercial product or service. Factors illustrative of those relevant to this interpretation include the placement of content that is the commercial advertisement or promotion of a commercial product or service, in whole or in substantial part, at the beginning of the body of the message; the proportion of the message dedicated to such content; and how color, graphics, type size, and style are used to highlight commercial content.
 
−
 
−
(b) In applying the term “transactional or relationship message” defined in the CAN-SPAM Act, 15 U.S.C. 7702(17), the “primary purpose” of an electronic mail message shall be deemed to be transactional or relationship if the electronic mail message consists exclusively of transactional or relationship content as set forth in paragraph (c) of this section.
 
−
 
−
(c) Transactional or relationship content of email messages under the CAN-SPAM Act is content:
 
−
 
−
(1) To facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;
 
−
 
−
(2) To provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
 
−
 
−
(3) With respect to a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender, to provide —
 
−
 
−
(i) Notification concerning a change in the terms or features;
 
−
 
−
(ii) Notification of a change in the recipient's standing or status; or
 
−
 
−
(iii) At regular periodic intervals, account balance information or other type of account statement;
 
−
 
−
(4) To provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or
 
−
 
−
(5) To deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.§316.4  Requirement to place warning labels on commercial electronic mail that contains sexually oriented material.
 
−
(a) Any person who initiates, to a protected computer, the transmission of a commercial electronic mail message that includes sexually oriented material must:
 
−
 
−
(1) Exclude sexually oriented materials from the subject heading for the electronic mail message and include in the subject heading the phrase “SEXUALLY-EXPLICIT: ” in capital letters as the first nineteen (19) characters at the beginning of the subject line; The phrase “SEXUALLY-EXPLICIT” comprises 17 characters, including the dash between the two words. The colon (:) and the space following the phrase are the 18th and 19th characters.
 
−
 
−
(2) Provide that the content of the message that is initially viewable by the recipient, when the message is opened by any recipient and absent any further actions by the recipient, include only the following information:
 
−
 
−
(i) The phrase “SEXUALLY-EXPLICIT: ” in a clear and conspicuous manner;3
 
−
 
−
3This phrase consists of nineteen (19) characters and is identical to the phrase required in 316.5(a)(1) of this Rule.
 
−
 
−
(ii) Clear and conspicuous identification that the message is an advertisement or solicitation;
 
−
 
−
(iii) Clear and conspicuous notice of the opportunity of a recipient to decline to receive further commercial electronic mail messages from the sender;
 
−
 
−
(iv) A functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that
 
−
 
−
(A) A recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and
 
−
 
−
(B) Remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message;
 
−
 
−
(v) Clear and conspicuous display of a valid physical postal address of the sender; and
 
−
 
−
(vi) Any needed instructions on how to access, or activate a mechanism to access, the sexually oriented material, preceded by a clear and conspicuous statement that to avoid viewing the sexually oriented material, a recipient should delete the email message without following such instructions.
 
−
 
−
(b) Prior affirmative consent. Paragraph (a) does not apply to the transmission of an electronic mail message if the recipient has given prior affirmative consent to receipt of the message.§316.5  Prohibition on charging a fee or imposing other requirements on recipients who wish to opt out.
 
 
Neither a sender nor any person acting on behalf of a sender may require that any recipient pay any fee, provide any information other than the recipient's electronic mail address and opt-out preferences, or take any other steps except sending a reply electronic mail message or visiting a single Internet Web page, in order to:
 
Neither a sender nor any person acting on behalf of a sender may require that any recipient pay any fee, provide any information other than the recipient's electronic mail address and opt-out preferences, or take any other steps except sending a reply electronic mail message or visiting a single Internet Web page, in order to:
  
 
(a) Use a return electronic mail address or other Internet-based mechanism, required by 15 U.S.C. 7704(a)(3), to submit a request not to receive future commercial electronic mail messages from a sender; or
 
(a) Use a return electronic mail address or other Internet-based mechanism, required by 15 U.S.C. 7704(a)(3), to submit a request not to receive future commercial electronic mail messages from a sender; or
  
−
(b) Have such a request honored as required by 15 U.S.C. 7704(a)(3)(B) and (a)(4).§316.6  Severability.
+
(b) Have such a request honored as required by 15 U.S.C. 7704(a)(3)(B) and (a)(4).
−
The provisions of this Part are separate and severable from one another. If any provision is stayed or determined to be invalid, it is the Commission's intention that the remaining provisions shall continue in effect.
+
}}
−
 
+
[https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=1&SID=cea8be427690a26231dda41b8ccb5f75&ty=HTML&h=L&n=16y1.0.1.3.40&r=PART CAN-SPAM Act of 2003]
−
'''Related harms under the Solove Taxonomy:''' §316.3-Appropriation, Decisional Interference, (b)-Decisional Interference
 
−
 
 
−
'''Scope of Law''' ''Business/Financial''
 

Latest revision as of 01:23, 22 October 2020

CAN-SPAM Act
Short Title Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
Official Text CAN-SPAM Act
Country/Jurisdiction United States
State or Province
Regulatory Bodies
Date Enacted 2003
Scope of the Law Individual, Group, Unincorporated Association, Limited or General Partnership, Corporation, or Other Business Entity
Information
Taxonomy Decisional Interference
Strategies
Template:Ad
Template:United StatesAd

The purpose of the CAN-SPAM Act is to protect individuals from inappropriate electronic commercial messages. The Act precludes individuals from charging for opt-out the electronic commercial messages.

Text of the law

§316.4 Requirement to place warning labels on commercial electronic mail that contains sexually oriented material.

(a) Any person who initiates, to a protected computer, the transmission of a commercial electronic mail message that includes sexually oriented material must:

(1) Exclude sexually oriented materials from the subject heading for the electronic mail message and include in the subject heading the phrase “SEXUALLY-EXPLICIT: ” in capital letters as the first nineteen (19) characters at the beginning of the subject line;

The phrase “SEXUALLY-EXPLICIT” comprises 17 characters, including the dash between the two words. The colon and the space following the phrase are the 18th and 19th characters.

(2) Provide that the content of the message that is initially viewable by the recipient, when the message is opened by any recipient and absent any further actions by the recipient, include only the following information:

(i) The phrase “SEXUALLY-EXPLICIT: ” in a clear and conspicuous manner;

This phrase consists of nineteen (19) characters and is identical to the phrase required in 316.5(a)(1) of this Rule.

(ii) Clear and conspicuous identification that the message is an advertisement or solicitation;

(iii) Clear and conspicuous notice of the opportunity of a recipient to decline to receive further commercial electronic mail messages from the sender;

(iv) A functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that

(A) A recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and Decisional Interference


(B) Remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message;

(v) Clear and conspicuous display of a valid physical postal address of the sender; and

(vi) Any needed instructions on how to access, or activate a mechanism to access, the sexually oriented material, preceded by a clear and conspicuous statement that to avoid viewing the sexually oriented material, a recipient should delete the email message without following such instructions.

(b) Prior affirmative consent.

Paragraph (a) does not apply to the transmission of an electronic mail message if the recipient has given prior affirmative consent to receipt of the message.

§316.5 Prohibition on charging a fee or imposing other requirements on recipients who wish to opt out. Decisional Interference


Neither a sender nor any person acting on behalf of a sender may require that any recipient pay any fee, provide any information other than the recipient's electronic mail address and opt-out preferences, or take any other steps except sending a reply electronic mail message or visiting a single Internet Web page, in order to:

(a) Use a return electronic mail address or other Internet-based mechanism, required by 15 U.S.C. 7704(a)(3), to submit a request not to receive future commercial electronic mail messages from a sender; or

(b) Have such a request honored as required by 15 U.S.C. 7704(a)(3)(B) and (a)(4).



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CAN-SPAM Act of 2003

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