Posted by Admin Saturday, March 24, 2012 2:24:00 PM

by Brenda L. Speer

If you get email, then you get spam, also known as junk email, unsolicited bulk email or unsolicited commercial email. Whatever it’s called, I think we all agree it’s a pain.

On January 1, 2004, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, also known as the CAN-SPAM Act, took effect. The CAN-SPAM Act is federal law and, therefore, it preempts state laws (for the most part) regarding junk email.

The CAN-SPAM Act applies to email senders and email initiators and regulates the manner in which and to whom commercial emails may be sent.

A “sender” is one who sends a message advertising or promoting a product, service, or Internet website: For example, sending an email advertising a book for sale.

An “initiator” is one who originates or transmits, or procures the origination or transmission, of such a message: For instance, a bulk email transmission service provider, like Constant Contact, who may send out’s email.

A “commercial electronic mail message” is defined as: any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).

Transactional or relationship messages are specifically excluded from the CAN-SPAM Act. Transaction or relationship email messages are permissible if the email is not primarily for advertising, and there is a prior connection between the sender and recipient. Prior connections exist in situations such as:

- Transaction confirmation, such as for an online purchase;

- Warranty or product information provided to the recipient regarding a previous purchase;

- Notification to the recipient regarding changes in or information about an existing account;

- Employment relationships; and Delivery of goods or services.

A commercial electronic mail message must comply the following requirements:

1) No false or misleading header information (the digital trail identifying the sender);

2) No misleading subject headings; Must be identified as an advertisement;

3) Must include a valid physical postal address and a functional return email address for the sender; and

4) Must provide clear and conspicuous notice of a recipient’s opportunity to decline to receive further messages from the sender and an opt-out feature by which to do so.

After reading these requirements, you’re probably thinking that’s nice and all, but you get commercial emails all that time which don’t comply. What can you do about it? Unfortunately, not much. The Act doesn’t provide for a private, civil cause of action. Violations of the Act may be enforced by the Federal Trade Commission, or by the state attorneys general and other state agencies or officials. The only private party that can bring a civil action against a spammer is an Internet access service provider. In egregious violations of the Act, the US Justice Department has the authority to bring a criminal action against a spammer.

We can take some heart in the Act though, because there have been some notable lawsuits brought against spammers. In a civil case, MySpace sued a spammer who had sent 735,925 messages through hijacked MySpace user accounts and was awarded $223,777,500 in damages. In a 2008 Colorado criminal case, spammer Edward Davidson was sentenced to 21 months in prison and fined $714,139. In another 2008 criminal case in Washington, Robert Soloway, known by the dubious moniker “king of spam,” was sentenced to 9 years in prison. Evidently Mr Soloway is a slow learner, because in 2005 Microsoft sued him and won a $7,800,000 judgment against him.

Self-Help Measures

Here are some tips to get a grip on the spam that clogs your inbox:

- Implement spam-filtering software. Such software will block a lot of spam from ever getting to your inbox and funnel questionable emails to a junk mail folder.

- Block spam that makes it to your inbox. It’s a chore, but take the time to flag spam as junk email and block the sender’s email address and/or domain against future delivery. That’s how filtering software gets educated as to what’s junk and what’s not, thereby increasing it’s ability to block spam and never deliver it to your inbox.

- Use the bcc: field. When you send an email to multiple recipients, use the bcc: field to enter their addresses. The bcc: field blocks the addresses from the view of the recipients and helps keep those addresses out the hands of email harvesters. Every time you forward the latest joke to your friends and you use the to: field instead, eventually, those addresses continue downstream and wind up in the hands of email harvesters who then send you spam.

- Delete addresses when forwarding. See above. If you leave the addresses in the original email and forward it on, then those addresses are visible to the recipients, live on and are vulnerable to harvesting.

- Unsubscribe. If you get unwanted email through a commercial email transmission service provider, such as Constant Contact or iContact, then use the unsubscribe function. This flags your email address in the sender’s database and prevents emails from that sender being sent to you in the future through that service provider. I use iContact and know that when someone unsubscribes, his or her email address is no longer available for me to use when sending email through iContact.

- Opt out. When making an online purchase or other transaction, read the fine print accompanying the order or request form. Usually there is an option check box to opt out of future communication that is not related to your transaction. Take advantage of this easy, initial opt-out opportunity; it’ll spare you from receiving unwanted email and having to expend time and effort to opt out later.

- Don’t Respond. Every time a spam recipient responds to the email or clicks through to a link in the email, the spammers are encouraged to continue. Unfortunately for all of us, people out there in cyber-space are responding and the spam keeps coming.

- Drop out. Hang back in the 20th century, stick to snail mail and skip email. Just kidding! I can’t imagine life now without email and the Internet. How did we ever get anything done in the olden days?

© 2009 BL Speer & Associates

BL Speer & Associates
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