• CAN-SPAM Forced Hand
  • December 20, 2003 | Author: Theodore F. Claypoole
  • Law Firm: Womble Carlyle Sandridge & Rice - Charlotte Office
  • After years of tremendous growth of direct email solicitations, how does an angry public finally force Congress and the President to pass nationwide limitations on fraudulent email? By passing a state measure that truly frightens the direct marketing industry, so that spammer's lobbyists beg Congress for preemption.

    Yesterday, President Bush executed the first significant federal legislation to regulate unsolicited commercial email just ahead of the effective date of California's tough anti-spam law. However, the federal law should not limit recent prosecutions begun in Virginia against notorious email marketers.

    The federal CAN-SPAM law (the name stands for "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003") becomes effective January 1, 2004 and prohibits deceptions and material falsifications in unsolicited commercial email and certain unauthorized access to computers for the purpose of sending commercial email. The law provides both criminal and civil penalties which may be enforced by either state of federal attorneys, or by internet service providers. It does not provide a private right of action for email recipients.

    Direct marketing industry groups had urged congress to act quickly to preempt a new California anti-spam law that would otherwise go into effect on January 1, 2004. The California statute essentially bans unsolicited commercial email, unless the sender obtains prior permission or has an existing business relationship with the recipient. Unlike the federal law, the California law provides a private right of action to consumers and fines of up to $1 million per incident.

    Jerry Cerasale, senior vice president of the Direct Marketing Association, was quoted in AdAge.com as stating, "We don't agree with all of it, but we support it. It has to be a national standard. We can't have a patchwork."

    CAN-SPAM preempts state spam laws "except to the extent that any such statute, regulation or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto." Therefore, although the stringent California act is preempted, other state spam laws may still be enforced.

    Last week a man alleged to be one of the world's most active spammers was arrested in North Carolina and charged under Virginia's anti-spam law -- a law prohibiting material misrepresentations in commercial email. The Virginia law's similarity to CAN-SPAM makes it unlikely to be preempted by the new federal law. The Jaynes criminal case was not the first under state spam laws. In May, New York prosecutors filed criminal charges against a man known as the "Buffalo Spammer".

    Regulations must be promulgated under the CAN-SPAM law, so its implementation still holds elements of uncertainty. The federal law also contains a provision that would direct the Federal Communications Commission to promulgate rules to protect consumers from unsolicited wireless messages.