CAN-SPAM Act of 2003 - CAN-SPAM and The FTC

CAN-SPAM and The FTC

CAN-SPAM allows the FTC to implement a national do-not-email list similar to the FTC's popular National Do Not Call Registry against telemarketing, or to report back to Congress why the creation of such a list is not currently feasible. The FTC soundly rejected this proposal, and such a list will not be implemented. The FTC concluded that the lack of authentication of email would undermine the list, and it could raise security concerns.

The legislation prohibits e-mail recipients from suing spammers or filing class-action lawsuits. It allows enforcement by the FTC, State Attorneys General, Internet service providers, and other federal agencies for special categories of spammers (such as banks). An individual might be able to sue as an ISP if (s)he ran a mail server, but this would likely be cost-prohibitive and would not necessarily hold up in court. Individuals can also sue using state laws about fraud, such as Virginia's which gives standing based on actual damages, in effect limiting enforcement to ISPs.

Senator John McCain is responsible for a last-minute amendment which makes businesses promoted in spam subject to FTC penalties and enforcement remedies, if they knew or should have known that their business was being promoted by the use of spam. This amendment was designed to close a loophole which allowed those running affiliate programs to allow spammers to abuse their programs, and encouraged such businesses to assist the FTC in identifying such spammers. The McCain amendment, as it is known, was authored for Senator McCain's office by Anne P. Mitchell

Senator Corzine sponsored an amendment to allow bounties for some informants. The FTC has limited these bounties to individuals with inside information. The bounties are expected to be over $100,000, but none have been awarded yet.