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Federal Internet Law & Policy
An Educational Project
SPAM: What is SPAM? Dont be a FOOL; The Law is Not DIY

Is it SPAM when some imprudent political candidate endeavors to sway your vote by bombing your inbox with persuasive prose? [See also FEC; Congressional Email] To the untrained legal eye, the answer is “of course this is SPAM; bleah!” But as we all know, attorneys and politicians do not speak the English that most Americans speak.

The CAN SPAM Act restricts Commercial Electronic Email Messages (I just love the repetition of this Act; the Act restricts Electronic Email otherwise know as Electronic Electronic-mail. I know the Supreme Court says that Congress knows what it is talking about and every word has meaning; when I discern what a non-electronic electronic-mail is, I will promptly issue an addendum to this article). Under the Act, Commercial Email has the primary purpose of an advertisement or the promotion of a good or service. Commercial Email does not include a commercial transactional email, such as when a dot-com sends you a confirming email that your order of Mashuganuts has just been delivered.

The CAN SPAM Act makes repeated reference to “protected computers.” This is not a reference to the use of firewalls or virus protection (although these are good ideas). The term “protected computer” emanates from the Computer Fraud and Abuse Act. Originally “protected computers” were computers from financial institutions and the government. Gradually this definition has been expanded to include all networked computers. Don’t make much of these arcane words; if your computer is receiving SPAM, it is a “protected computer.”

FTC Seeks Comments on Proposed Can-Spam Rules: Primary Purpose

Project No. R411008

The Federal Trade Commission is seeking public comment on proposed rules regarding commercial electronic mail messages. The CAN-SPAM Act, which took effect January 1, 2004, requires that the Commission issue regulations ?defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message.? In this Federal Register Notice, the FTC introduces proposed criteria to facilitate the determination of when an e-mail message has a commercial primary purpose, and seeks comments in response to this proposal.

The Notice of Proposed Rulemaking proposes criteria for determining the ?primary
purpose? of an e-mail message. This is the second step in this rulemaking process, following an ?Advance Notice of Proposed Rulemaking? published in the Federal Register on March 11, 2004. In the earlier notice, the FTC sought comment on the mandatory ?primary purpose? rulemaking, and on several other issues, including certain areas of discretionary rulemaking authority established in the Act, several compliance issues that have been raised by industry since passage of CAN-SPAM, and several reports that CAN-SPAM requires the FTC to prepare and submit to Congress.

The August 13 Federal Register Notice will address only the FTC?s proposed ?primary purpose? criteria. This Notice will not address the discretionary rulemaking issues or the compliance issues upon which the FTC sought comment in the earlier Federal Register Notice. The FTC will address those issues in a future Federal Register Notice that the Commission will be publishing shortly.

As explained in the August 13 Federal Register Notice, the FTC is proposing the following criteria for determining when an e-mail message has a commercial
primary purpose:

    * First, if an e-mail message contains only content that advertises or promotes a product or service (?commercial content?), then the primary purpose of the message would be deemed to be commercial;

    * Second, if an e-mail message contains both commercial content and content that falls within one of the categories listed in the Act?s definition of ?transactional or relationship message,? then the primary purpose of the message would be deemed to be commercial if either 1) a recipient reasonably interpreting the subject line of the message would likely conclude that the message advertises or
promotes a product or service; or 2) the message?s ?transactional or relationship? content does not appear at or near the beginning of the message;

    * Third, if an e-mail message contains both commercial content and content that is neither ?commercial? nor ?transactional or relationship,? then the primary purpose of the message would be deemed to be commercial if either: 1) a recipient reasonably interpreting the subject line of the message likely would conclude that the message advertises or promotes a product or service; or 2) a recipient reasonably interpreting the body of the message likely would conclude that the primary purpose of the message is to advertise or promote a product or service. Factors illustrative of those relevant to this interpretation would include the placement of commercial content at or near the beginning of the body of the message; the proportion of the message dedicated to commercial content; and how color, graphics, type size, and style are used to highlight commercial content.
 

FTC Can Spam Act Proposed Regulations: Primary Purpose

Project No. R411008 March 31, 2004 & April 12, 2004

"The Federal Trade Commission will publish a Federal Register Notice Thursday, March 11, 2004, seeking public comment on regulations regarding unsolicited commercial e-mail - spam. The CAN-SPAM Act, which took effect January 1, 2004, requires that the Commission issue regulations "defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message." Since the CAN-SPAM Act applies almost exclusively to "commercial electronic mail messages," defining the criteria used to determine the "primary purpose" of an e-mail will clarify how to determine whether the Act applies to certain electronic messages.

Beginning Thursday, March 11, comments can be filed electronically through the federal government's centralized rulemaking Web site, www.regulations.gov. The FTC will post a "web form" at the site to make it easier for commenters to address the various issues in the Federal Register notice. Commenters may address as many or as few issues as they wish, or skip the form and write what they choose in a text box, or attach a separate document for submission to the record.

According to the Federal Register Notice, the FTC is seeking comment on the mandatory "primary purpose" rulemaking, and on several other issues, including four other areas of discretionary rulemaking authority established in the Act. 

First, the Act designates five categories of messages as "transactional or relationship messages," which are exempt from the provisions of the Act. For example, messages sent "to facilitate, complete, or confirm a transaction the recipient has agreed to enter into with the sender" are deemed to be "transactional or relationship messages," and are therefore exempt from the Act's requirements that apply only to commercial e-mail. The Act gives the FTC authority to issue rule provisions that modify the definitions of these categories of "transactional or  relationship" messages if it finds such modification is necessary to accommodate technological changes in or to accomplish the purposes of the Act. The Commission seeks comment whether it should exercise this authority, and if so, how. 

Second, the CAN-SPAM Act requires that e-mailers allow recipients to opt out of receiving further commercial e-mail and provides senders 10 business days to process opt out requests. The Act gives the Commission the authority to modify the 10 day period for effectuating opt-out requests. The FTC is seeking comment on the reasonableness of the 10-business-day time period and whether a different time period would be more reasonable, taking into account the interest in allowing consumers to opt out, the interests of recipients of spam, and the burdens imposed on senders of lawful commercial e-mail.

Third, the Act defines certain practices, such as e-mail address "harvesting" and "dictionary attacks" as aggravated violations. The Act significantly increases the amount of damages a violator may be liable to pay if he or she engages in an aggravating violation while violating another provision of the Act. The CAN-SPAM Act authorizes the Commission to designate other practices as aggravated violations. The FTC seeks comment on what additional activities and practices, if any, should be added to the list of aggravated violations.

Fourth, the Act provides that the Commission may issue regulations to implement the provisions of the Act, and the FTC is seeking comment on whether additional regulations would be helpful. The notice asks for comment on the following specific issues:

  • Would it assist companies and individuals seeking to comply if the Commission were to adopt rule provisions clarifying the legal obligations of initiators and recipients who forward messages in "forward-to-a-friend" scenarios?
  • Would it be helpful if the Commission were to adopt rule provisions clarifying the obligations of multiple senders of a single e-mail under the Act?
  • Questions have arisen about whether post office boxes or commercial mail drops satisfy the Act's requirement that commercial e-mail messages include a "valid physical postal address of the sender." Would it would be useful for the Commission to adopt rule provisions clarifying what constitutes a "valid physical postal address"?
  • The Act prohibits false or misleading transmission information, but states that a "from" line that accurately identifies any person who initiated the message will not be considered false or misleading. The notice asks whether the Act's treatment of "from" line information is sufficiently clear, and whether the Act requires the "from" line to identify a sender by name.

    • The Notice also seeks comment on four reports to Congress required by the CAN-SPAM Act:

  • A report on establishing a nationwide Do Not E-Mail Registry, due June 16, 2004;
  • A report on establishing a system for rewarding those who supply information about CAN-SPAM violations, due September 16, 2004;
  • A report setting forth a plan for requiring commercial e-mail to be identifiable from its subject line, due June 16, 2005; and
  • A report on the effectiveness of CAN-SPAM, due December 16, 2005.

    • - Press Release Mar 10, 2004

    Press Release Mar 10, 2004

    Definitions, Implementation, and Reporting Requirements under the CAN-SPAM Act, Federal Trade Commission, Advanced Notice of Proposed Rule, 69 Fed.Reg. 11776 ( March 11, 2004)

    FTC Seeks Comments on Spam Regulation, FTC 

    Starting March 11, comments can be filed electronically at http://www.regulations.gov. Commentors should select "Federal Trade Commission" at "Search for Open Regulations," locate the summary of this Notice, click on "Submit a Comment on this Regulation," and complete the form. Comments addressing the "National Do Not E-mail" Registry must be submitted on or before March 31, 2004. Comments addressing any other aspect of the CAN-SPAM Act must be submitted on or before April 12, 2004. Written comments should refer to the CAN-SPAM Act Rulemaking, Project No. R411008 on both the envelope and the text. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, as U.S. Postal Service mail in the Washington area and at the Commission is subject to delay due to heightened security precautions. Comments can be delivered by courier or overnight service to Federal Trade Commission/Office of the Secretary, Room 159-H, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. Comments can be mailed by U.S. Postal Service to the following address: Federal Trade Commission, CAN-SPAM Act, Post Office Box 1030, Merrifield, VA 22116-1030. Comments will be placed on the public record.

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