"CAN-SPAM ACT OF 2003"

On October 22, 2003, the U.S. Senate unanimously passed a tough anti-spam measure by a 97-0 vote. The measure is called the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003," or the "CAN-SPAM Act of 2003." (S 877.)

CRIMINAL PENALTY FOR SPAM WITH FRAUDULENT ROUTING INFORMATION

Under the "CAN-SPAM Act of 2003," as amended, a person who sends unsolicited commercial e-mail (UCE) may, under certain circumstances, face up to five years in prison and/or a hefty fine.

SENATE WANTS FTC TO ENFORCE ACT

Under Section 6 of this Act (as originally drafted), the Senate empowers FTC to enforce the Act "as if the violation of this Act were an unfair or deceptive act or practice proscribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B))."

A last-minute amendment to S. 877 was submitted on October 22, 2003 (i.e., S.AMDT.1896). Senate Amendment 1896 was agreed to in the Senate by voice vote. Sponsored by Senator Jon Corzine (D-NJ), the amendment's purpose is "To direct the FTC to develop a system for rewarding those who supply information about violations of this Act and a system for requiring ADV labeling on unsolicited commercial electronic mail." Essentially, this authorizes FTC to create a do-not-spam list similar to the wildly popular do-not-call list

MEASURE CONTEMPLATES NATIONAL DO-NOT-E-SPAM REGISTRY

The legislation gives FTC six months after enactment of S. 877, to transmit to the Senate Committee on Commerce, Science, and Transportation and the House of Representatives Committee on Energy and Commerce this do-not-spam list. Specifically, S. 877, as amended, requires FTC to send to this committee a report that--

• "(1) sets forth a plan and timetable for establishing a nationwide marketing Do-Not-E-mail registry;
• (2) includes an explanation of any practical, technical, security, privacy, enforceability, or other concerns that the Commission has regarding such a registry; and
• (3) includes an explanation of how the registry would be applied with respect to children with e-mail accounts."

NEXT STEPS

On October 24, 2003, the "Message on Senate action" on S. 877 was sent to, and received by, the House. Should the House pass this, or a similar version of this, measure Congress recesses this month, this new federal law would preempt California's recently adopted anti-spam statute.

LAWYER'S REFERENCE SERVICE

"Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003," or the "CAN-SPAM Act of 2003." (S 877.)

Volume XXIII
Issue 22
November 17, 2003
Page 5-6