• Studies Find CAN-SPAM Act Is Ineffective At Preventing Spam
  • January 22, 2004
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • Studies conducted by several spam filtering companies since the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (Can-Spam) Act went into effect on January 1, 2004 have revealed that 90%-99% of all unsolicited e-mails received by their clients do not comply with the law. Equally remarkable is the studies' finding that there has been no reduction in the amount of spam disseminated. In fact, a report published by California-based MX Logic indicates that the amount of spam has actually increased 6.5% since the law was enacted, accounting for a total of 77% of all e-mail received by its clients.

    Both Commtouch Software, a California company, and MxLogic found that 99% of spam received by their clients did not incorporate some or all of the requirements of Can-Spam, e.g., an opt-out mechanism, a truthful subject line, a return e-mail address, and a valid postal address. Using its proprietary technology, Commtouch specifically determined that 80% of the spam did not contain the requisite return e-mail address and that 40% of the subject lines bore no relationship to the subject of the e-mail.

    Audiotrieve, a Massachusetts spam filtering company, analyzed 1,000 unsolicited commercial e-mails received in "beehives," specially created accounts designed to attract spam. It found that 90% of those e-mails violated Can-Spam.

    To make matters worse, some spammers have found a way to disguise their unlawful e-mail from detection by spam filtering companies. Some filtering systems work by calculating the probability that the message is spam based on the content of the message. To trick the filtering system into believing that the e-mail is legitimate, spammers incorporate a string of gibberish or "good words" at the bottom of the spam or in the subject line.

    Significance: Before conclusions may be drawn about the effectiveness of Can-Spam, federal regulators, state attorneys general, and Internet service providers (ISPs) must actively enforce its provisions. The current delay in enforcement may be due to the difficulty in locating spammers, who intentionally hide their physical locations and identities. However, we can expect to see legal action taken against spammers in the near future as regulators and ISPs have expressed a commitment to stopping spam. Legitimate e-mail marketers, as well as those who are flouting the law, should be prepared.