The Catholic University of America

Summary of Federal Laws

Miscellaneous Laws Affecting Universities

Compliance Partners

Director of Instructional Technology
 

CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003) Public Law 109-187; 15 USC 7701-7713, 18 USC 1001, 1037; 28 USC 994; and 47 USC 227

This law, which took effect Jan. 1, 2004, criminalizes the sending of certain types of commercial email. Penalties include fines and prison terms of up to five years.

The CAN SPAM Act preempts any state regulation of commercial email except for those local laws prohibiting false or deceptive statements. The CAN SPAM Act is in response to the growth in unsolicited commercial electronic mail which imposes significant monetary costs on Internet access services, businesses, and educational and non-profit institutions that receive such mail.

Under the new law, companies may send transactional or relationship emails, commercial email where the recipient has given consent, and certain unsolicited commercial email messages. Commercial email is defined in the law as those emails that have as their primary purpose the promoting or advertising of a commercial product or service. The law specifically prohibits the sending of commercial (including transactional) email that is accompanied by header information that is materially false or misleading or with a deceptive subject heading. The law requires the inclusion of a functioning return electronic mail address (or other Internet based mechanism) on all commercial email that the recipient may use to submit a reply not to receive further email from the sender. Commercial email must include clear and conspicuous identification that the message is an ad, notice of the chance to decline further email, and a valid physical postal address from the sender.

Transactional or relationship email messages are generally one of five types:

1. those that facilitate, complete or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender, e.g. an email from Amazon letting you know that your book order has been shipped;

2. those that provide warranty or product recall information, or safety or security information about a commercial product purchased by the recipient;

3. those that pertain to subscription, membership, loan, account or other kinds of ongoing relationships;

4. those that relate to an employment relationship or related benefit plan; and

5. those delivering goods or services including product upgrades which the recipient is entitled to receive based upon a prior business relationship with the sender.

The law also includes a requirement to place warning labels on commercial email containing sexually oriented material. The FTC will prescribe marks or notices to be included with this type of email.
 
While the law does not allow private individuals to bring suit, states as well as Internet Service Providers may bring suit under this law to enjoin further violations, and to recover damages. Damages include an amount equal to the greater of actual monetary loss incurred, or either $25 or $100 (depending upon which section of the law was violated) times the number of violations. Violations are counted using each separately addressed unlawful message.
 
The FTC is also charged with studying the feasibility of a do not email registry, and the FCC in conjunction with the FCC must promulgate rules within 270 days to protect consumers from unwanted mobile service commercial messages.
 
Definitions, Implementation, and Reporting Requirements Under the CAN-SPAM Act; Proposed Rule, 70 Fed. Reg. 25425, May 12, 2005
 
The Commission has already published final Rule provisions: (1) Governing the labeling of commercial e-mail containing sexually-oriented material, and (2) establishing criteria for determining when the primary purpose of an e-mail message is commercial. This proposed rule addresses the grant of discretionary authority for the FTC to issue regulations concerning certain of the law's other definitions and provisions. See the FTC press release for a summary of the proposed changes.
 
CAN-SPAM Act, final rule, 70 Fed. Reg. 3109, Jan. 19, 2005
 
Effective May 19, 2004, except for Sec. 316.3, which will become effective on March 28, 2005.,
The final rule's version slightly modifies the proposal's description of "commercial content.'' In the final rule, commercial content is "the commercial advertisement or promotion of a commercial product or service.'' Under section 316.3(a)(1) of the final rule, if an e-mail message contains only commercial content, the "primary purpose'' of the message shall be deemed to be commercial.
 
Under section 316.3(a)(2) of the final rule, if an electronic mail message contains both commercial content and transactional or relationship content, then the primary purpose of the message shall be deemed to be commercial if: (1) 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 (2) the electronic mail message's transactional or relationship content does not appear, in whole or in substantial part, at the beginning of the body of the message. In other words, for such a message to be deemed to have a "transactional or relationship'' primary purpose, the subject line must not contain a reference to a commercial advertisement or promotion of a commercial product or service and the transactional or relationship content must appear in whole or in substantial part at the beginning of the body of the message. Both criteria must be fulfilled if a message is to be deemed to have a purpose that is primarily transactional or relationship.
 
The Commission did not change the subject line criterion set forth in the NPRM.
With respect to "placement'' criterion for e-mail messages with both commercial content and transactional or content, the final rule uses the narrower and more precise formulation "transactional or relationship content as set forth in paragraph (c) of this section.''
 
The Commission declined to adopt a final rule that would treat dual-purpose messages as transactional or relationship messages simply because they include any amount of transactional or relationship content appearing anywhere in the message. The final rule determines whether an e-mail message is commercial based on a reasonable recipient's interpretation of the subject line, and, if necessary, the net impression made by the body of the message. Therefore, if the subject line of a dual-purpose message only references the "other'' content included in the message, then the recipient could not reasonably interpret the subject line as commercial.
 
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 the relevant section.
 
CAN-SPAM regulates commercial e-mail messages, and it does not regulate non-commercial e-mail.
 
Case Law
 
 
In a case of "very, very first impression," the 5th Circuit Court of Appeals held that the CAN-SPAM Act does not prevent UT's anti-spam policy, and second, the policy is permissible under the First Amendment commercial speech jurisprudence. The University of Texas, like most schools, provides internet access and email addresses to faculty staff and students. The UT system has 178 email servers.
 
The Plaintiff, White Buffalo Ventures, LLC, operates online dating services. After obtaining email for UT students pursuant to an open records request, White Buffalo sent unsolicited emails to thousands of UT email account holders. After White Buffalo ignored UT's cease and desist letter, UT blocked all email coming from the White Buffalo IP address. White Buffalo went to court to prevent UT from taking this action, arguing that the federal ANTI-SPAM legislation preempted UT's policy of blocking many types of incoming spam, irrespective of commerical content or source authenticity. The district court granted summary judgment for the university, and the Court of Appeals affirmed. The district court noted that 15 USC 7707(c) permits Internet service providers to employ protection measures, and also that the Act does not prevent a state entity like UT from using technological devices such as spam filters to save server space and safeguard the time and resources of employees, students and faculty. The Court of Appeals, in upholding the lower court decision, noted that there was a strong presumption against preemption of state law, or in other words, a "tie goes to the state" jurdisprudence.
 
The Court of Appeals also addressed the First Amendment free speech question, using the four part commercial speech test, and found that the regulation in place by UT did not violate the First Amendment. A substantial interest in regulating spam was found, and the state action directly promoted that interest. The UT policy was found to be no more than necessary to achieve at least one of the two state interests, that of promoting user efficiency. The court found that in terms of promoting server efficiency, the policy might have been more extensive than necessary, but since one of the asserted governmental interests was substantial and not more extensively implemented than necessary, the policy would be upheld as constitutionally permissible. The court did not address what type of First Amendment forum a public university email network would constitute.
 

Resources:

FTC web page on reducing unwanted email

MAAWG Sender Best Communication Practices: (Messaging Anti-Abuse Working Group Executive Summary Updated Sept. 2011 

 

 

Linked checked by SZG 3/26/12