Order Code RL31953
CRS Report for Congress
Received through the CRS Web
“Junk E-Mail”: An Overview of
Issues Concerning Commercial
Electronic Mail and “Spam”
Updated June 17, 2004
Marcia S. Smith
Specialist in Aerospace and Telecommunications Policy
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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“Junk E-Mail”: An Overview of Issues
Concerning Commercial Electronic Mail and “Spam”
Summary
Unsolicited commercial e-mail (UCE), also called “spam” or “junk e-mail,”
aggravates many computer users. Not only can spam be a nuisance, but its cost may
be passed on to consumers through higher charges from Internet service providers
who must upgrade their systems to handle the traffic. Also, some spam involves
fraud, or includes adult-oriented material that offends recipients or that parents want
to protect their children from seeing. Proponents of UCE insist it is a legitimate
marketing technique that is protected by the First Amendment, and that some
consumers want to receive such solicitations.
On December 16, President Bush signed into law S. 877, the Controlling the
Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act. The law,
P.L. 108-187, went into effect on January 1, 2004.
The CAN-SPAM Act does not ban unsolicited commercial e-mail. Rather, it
allows marketers to send commercial e-mail as long as it conforms with the law, such
as including a legitimate opportunity for consumers to “opt-out” of receiving future
commercial e-mails from that sender. It preempts state laws that specifically address
spam, but not state laws that are not specific to e-mail, such as trespass, contract, or
tort law, or other state laws to the extent they relate to fraud or computer crime. It
does not require a centralized “Do Not Email” registry to be created by the Federal
Trade Commission (FTC), similar to the National Do Not Call registry for
telemarketing. The law requires only that the FTC develop a plan and timetable for
establishing such a registry, and to inform Congress of any concerns it has with
regard to establishing it. The FTC submitted that report to Congress on June 15,
2004, concluding that a Do Not Email registry would be, at best, ineffective. FTC
Chairman Timothy Muris and others have cautioned that consumers should not
expect legislation to be a “silver bullet” for solving the spam problem; a combination
of consumer education, technological advancements, and legislation is required.
The extent to which P.L. 108-187 reduces “spam” may be debated if for no other
reason than there are various definitions of that term. Proponents of the legislation
argue that consumers are most irritated by fraudulent e-mail, and that the law should
reduce the volume of such e-mail because of the civil and criminal penalties included
therein. Opponents counter that consumers object to unsolicited commercial e-mail,
and since the law legitimizes commercial e-mail (as long as it conforms with the
law’s provisions), consumers actually may receive more, not fewer, unsolicited
commercial e-mail messages. Thus, whether or not “spam” is reduced depends in
part on whether it is defined as only fraudulent commercial e-mail, or all unsolicited
commercial e-mail.
Spam on wireless devices such as cell phones is a growing concern, and is also
addressed in P.L. 108-187. See CRS Report RL31636, Wireless Privacy: Availability
of Location Information for Telemarketing for more on that topic. This report will be
updated as events warrant.

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Contents
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
What Is Spam? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Avoiding and Reporting Spam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Restraining Spam: Federal Law—The CAN-SPAM Act . . . . . . . . . . . . . . . . . . . 4
Summary of the Major Provisions of the CAN-SPAM Act . . . . . . . . . . . . . . 4
Opt-In, Opt-Out, and a “Do Not Email” Registry . . . . . . . . . . . . . . . . . . . . . 7
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CAN-SPAM Act Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
FTC Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Labels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CAN-SPAM Act Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
FTC Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Other FTC Implementation Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Legal Actions Based on the CAN-SPAM Act . . . . . . . . . . . . . . . . . . . . . . . 10
Reaction to the CAN-SPAM Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Restraining Spam: State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Restraining Spam: Non-Legislative Approaches . . . . . . . . . . . . . . . . . . . . . . . . . 13
Securing Internet Connections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Challenge-Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Microsoft’s Three-Part Strategy: “Caller ID for E-Mail,” Certificates,
and “Postage” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
FTC’s Four Step Plan for Creating an Authentication Standard . . . . . 17
Other Actions by ISPs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
List of Tables
Table 1. Major Provisions of the CAN-SPAM Act . . . . . . . . . . . . . . . . . . . . . . 19

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“Junk E-Mail”: An Overview of Issues
Concerning Commercial Electronic Mail and
“Spam”
Overview
One aspect of increased use of the Internet for electronic mail (e-mail) has been
the advent of unsolicited advertising, also called “unsolicited commercial e-mail”
(UCE), “unsolicited bulk e-mail,” “junk e-mail, “or “spam.”1 Complaints focus on
the fact that some spam contains, or has links to, pornography, that much of it is
fraudulent, and the volume of spam is steadily increasing. In April 2003, the Federal
Trade Commission (FTC) reported that of a random survey of 1,000 pieces of spam,
18% concerned “adult” offers (pornography, dating services, etc.) and 66% contained
indications of falsity in “from” lines, “subject” lines, or message text.2 According to
Brightmail [http://www.brightmail.com], a company that sells anti-spam software,
the volume of spam as a percentage of all Internet e-mail rose from 8% in January
2001 to 64% in May 2004.
Opponents of junk e-mail argue that not only is it annoying and an invasion of
privacy (see CRS Report RL31408 for more on Internet privacy), but that its cost is
borne by recipients and Internet Service Providers (ISPs), not the marketers.
Consumers reportedly are charged higher fees by ISPs that must invest resources to
upgrade equipment to manage the high volume of e-mail, deal with customer
complaints, and mount legal challenges to junk e-mailers. Businesses may incur
costs due to lost productivity, or investing in upgraded equipment or anti-spam
software. The Ferris Research Group [http://www.ferris.com], which offers
consulting services on managing spam, estimated that spam cost U.S. organizations
over $10 billion in 2003.
Proponents of UCE argue that it is a valid method of advertising, and is
protected by the First Amendment. The Direct Marketing Association (DMA)
released figures in May 2003 showing that commercial e-mail generates more than
1 The origin of the term spam for unsolicited commercial e-mail was recounted in
Computerworld, April 5, 1999, p. 70: “It all started in early Internet chat rooms and
interactive fantasy games where someone repeating the same sentence or comment was said
to be making a ‘spam.’ The term referred to a Monty Python’s Flying Circus scene in which
actors keep saying ‘Spam, Spam, Spam and Spam’ when reading options from a menu.”
2 Federal Trade Commission. False Claims in Spam: A Report by the FTC’s Division of
Marketing Practices. April 30, 2003. P. 10. Available at the FTC’s spam website:
[http://www.ftc.gov/bcp/conline/edcams/spam/index.html]

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CRS-2
$7.1 billion in annual sales and $1.5 billion in potential savings to American
consumers.3 In a joint open letter to Congress published in Roll Call on November
13, 2003, three marketing groups — DMA, the American Association of Advertising
Agencies, and the Association of National Advertisers — asserted that “12% of the
$138 billion Internet commerce marketplace is driven by legitimate commercial e-
mail. This translates into a minimum of $17.5 billion spent in response to
commercial e-mails in 2003 for bedrock goods and services such as travel, hotels,
entertainment, books, and clothing.”4 A March 2004 study by the Pew Internet &
American Life Project found that 5% of e-mail users said they had ordered a product
or service based on an unsolicited e-mail, which “translates into more than six
million people.”5
DMA argued for several years that instead of banning UCE, individuals should
be given the opportunity to “opt-out” by notifying the sender that they want to be
removed from the mailing list. (The concepts of opt-out and opt-in are discussed
below.) Hoping to demonstrate that self regulation could work, in January 2000, the
DMA launched the E-mail Preference Service where consumers who wish to opt-out
can register themselves at a DMA website [http://www.dmaconsumers
.org/emps.html]. DMA members sending UCE must check their lists of recipients
and delete those who have opted out. Critics argued that most spam does not come
from DMA members, so the plan was insufficient, and on October 20, 2002, the
DMA agreed. Concerned that the volume of unwanted and fraudulent spam is
undermining the use of e-mail as a marketing tool, the DMA announced that it would
pursue legislation to battle the rising volume of spam.
Controlling spam is complicated by the fact that some of it originates outside
the United States and thus is not subject to U.S. laws or regulations. Spam is a global
problem, and a 2001 study by the European Commission concluded that Internet
subscribers globally pay 10 billion Euros a year in connection costs to download
spam [http://europa.eu.int/comm/internal_market/privacy/studies/spam_en.htm].
Some European officials complain that the United States is the source of most spam,
and the U.S. decision to adopt an opt-out approach in the CAN-SPAM Act (discussed
below) was not helpful.6 A British anti-spam company, Sophos, asserted in March
2004 that the United States is responsible for more than 56% of the spam sent
worldwide.7 Tracing the origin of any particular piece of spam can be difficult
because some spammers route their messages through other computers (discussed
below).
3 Quoted in: Digits. Wall Street Journal, May 22, 2003, p. B3.
4 Available at [http://www.the-dma.org/cgi/dispnewsstand?article=1638].
5 Pew Internet & American Life Project. Pew Internet Project Data Memo. March 2004.
Available at [http://www.pewinternet.org/reports/pdfs/PIP_Data_Memo_on_Spam.pdf].
6 For example, see Mitchener, Brandon. Europe Blames Weaker U.S. Law for Spam Surge.
Wall Street Journal, February 3, 2004, p. B1 (via Factiva).
7 Lemke, Tim. U.S. “Worst offender” in Spam Production. Washington Times, March 8,
2004, p. C13 (via Factiva).

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CRS-3
What Is Spam?
One challenge in debating the issue of spam is defining it.8 To some, it is any
commercial e-mail to which the recipient did not “opt-in” by giving prior affirmative
consent to receiving it. To others, it is commercial e-mail to which affirmative or
implied consent was not given, where implied consent can be defined in various ways
(such as whether there is a pre-existing business relationship). Still others view spam
as “unwanted” commercial e-mail. Whether or not a particular e-mail is unwanted,
of course, varies per recipient. Since senders of UCE do find buyers for some of their
products, it can be argued that at least some UCE is reaching interested consumers,
and therefore is wanted, and thus is not spam. Consequently, some argue that
marketers should be able to send commercial e-mail messages as long as they allow
each recipient an opportunity to indicate that future such e-mails are not desired
(called “opt-out”). Another group considers spam to be only fraudulent commercial
e-mail, and believe that commercial e-mail messages from “legitimate” senders
should be permitted. The DMA, for example, considers spam to be only fraudulent
UCE.
The differences in defining spam add to the complexity of devising legislative
or regulatory remedies for it. Some of the bills introduced in the 108th Congress took
the approach of defining commercial e-mail, and permitting such e-mail to be sent
to recipients as long as it conformed with certain requirements. Other bills defined
unsolicited commercial e-mail and prohibited it from being sent unless it met certain
requirements. The final law, the CAN-SPAM Act (see below), took the former
approach, defining and allowing marketers to send such e-mail as long as they abide
by the terms of the law, such as ensuring that the e-mail does not have fraudulent
header information or deceptive subject headings, and includes an opt-out
opportunity and other features that proponents argue will allow recipients to take
control of their in-boxes. Proponents of the law argue that consumers will benefit
because they should see a reduction in fraudulent e-mails. Opponents of the law
counter that it legitimizes sending commercial e-mail, and to the extent that
consumers do not want to receive such e-mails, the amount of unwanted e-mail
actually may increase. If the legislation reduces the amount of fraudulent e-mail, but
not the amount of unwanted e-mail, the extent to which it reduces “spam” would
depend on what definition of that word is used.
In its June 2004 report to Congress on a National Do Not Email Registry
(discussed below), the FTC referred to spam as unsolicited commercial e-mail.
Avoiding and Reporting Spam
Tips on avoiding spam are available on the FTC website [http://www.ftc.gov/
b c p / m e n u - i n t e r n e t . h t m ] a n d f r o m C o n s u m e r s U n i o n
[http://www.consumersunion.org/pub/core_product_safety/000210.html#more].
8 “Spam” generally refers to e-mail, rather than other forms of electronic communication.
The term “spim,” for example, is used for unsolicited advertising in Instant Messaging.
Unsolicited advertising on wireless devices such as cell phones is called “wireless spam.”

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CRS-4
Consumers may file a complaint about spam with the FTC by visiting the FTC
website [http://www.ftc.gov] and choosing “File a Complaint” at the bottom of the
page. The offending spam also may be forwarded to the FTC (UCE@ftc.gov) to
assist the FTC in monitoring UCE trends and developments. Some ISPs also have
mechanisms for their subscribers to report spam.
Restraining Spam: Federal Law—The CAN-SPAM
Act
The 108th Congress passed the CAN-SPAM Act, S. 877, which merged
provisions from several House and Senate bills.9 Signed into law by President
Bush on December 16, 2003 (P.L. 108-187), it went into effect on January 1, 2004.
The Senate originally passed S. 877 on October 22, 2003, by a vote of 97-0. As
passed at that time, the bill10 combined elements from several of the Senate bills.
The House passed (392-5) an amended version of S. 877 on November 21, 2003,
melding provisions from the Senate-passed bill and several House bills. The Senate
concurred in the House amendment, with an amendment, on November 25, through
unanimous consent. The Senate amendment included several revisions, requiring the
House to vote again on the bill. The House agreed with the Senate amendment by
unanimous consent on December 8, 2003.
Summary of the Major Provisions of the CAN-SPAM Act
The major provisions of P.L. 108-187 include the following.
! Commercial e-mail may be sent to recipients as long as the message
conforms with the following requirements:
— transmission information in the header is not false or misleading;
— subject headings are not deceptive;
— a functioning return e-mail address or comparable mechanism is
included to enable recipients to indicate they do not wish to receive
future commercial e-mail messages from that sender at the e-mail
address where the message was received (the “opt-out”
requirement);
— the e-mail is not sent to a recipient by the sender, or anyone
acting on behalf of the sender, more than 10 days after the recipient
has opted-out, unless the recipient later gives affirmative consent to
9 Nine bills were introduced in the 108th Congress prior to passage of the CAN-SPAM Act:
H.R. 1933 (Lofgren), H.R. 2214 (Burr-Tauzin-Sensenbrenner), H.R. 2515 (Wilson-Green),
S. 877 (Burns-Wyden), S. 1052 (Nelson-FL), and S. 1327 (Corzine) were “opt-out” bills.
S. 563 (Dayton) was a “do not e-mail” bill. S. 1231 (Schumer) combined elements of both
approaches. S. 1293 (Hatch) created criminal penalties for fraudulent e-mail.
10 The original Senate-passed bill contained a Title not related to spam (Title II — Realtime
Writers Act), which is not discussed in this report. It was not included in the amended
version of S. 877 passed by the Senate November 25.

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CRS-5
receive the e-mail (i.e., opts back in); and
— the e-mail must be clearly and conspicuously identified as an
advertisement or solicitation (although the legislation does not state
how or where that identification must be made).
! Some of those requirements (including the prohibition on deceptive
subject headings, and the opt-out requirement) do not apply if the
message is a “transactional or relationship message,” which include
various types of notifications, such as periodic notifications of
account balance or other information regarding a subscription,
membership, account, loan or comparable ongoing commercial
relationship involving the ongoing purchase or use by the recipient
of products or services offered by the sender; providing information
directly related to an employment relationship or related benefit plan
in which the recipient is currently involved, participating, or
enrolled; or delivering goods or services, including product updates
or upgrades, that the recipient is entitled to receive under the terms
of a transaction that the recipient has previously agreed to enter into
with the sender.
! Sexually oriented commercial e-mail must include, in the subject
heading, a “warning label” to be prescribed by the FTC (in
consultation with the Attorney General), indicating its nature. The
warning label does not have to be in the subject line, however, if the
message that is initially viewable by the recipient does not contain
the sexually oriented material, but only a link to it. In that case, the
warning label, and the identifier, opt-out, and physical address
required under section 5 (a)(5) of the act; must be contained in the
initially viewable e-mail message as well. Sexually oriented
material is defined as any material that depicts sexually explicit
conduct, unless the depiction constitutes a small and insignificant
part of the whole, the remainder of which is not primarily devoted
to sexual matters. These provisions do not apply, however, if the
recipient has given prior affirmative consent to receiving such e-
mails.
! Businesses may not knowingly promote themselves with e-mail that
has false or misleading transmission information.
! State laws specifically related to spam are preempted, but not other
state laws that are not specific to electronic mail, such as trespass,
contract, or tort law, or other state laws to the extent they relate to
fraud or computer crime.
! Violators may be sued by FTC, state attorneys general, and ISPs (but
not by individuals).
! Violators of many of the provisions of the act are subject to statutory
damages of up to $250 per e-mail, to a maximum of up to $2

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CRS-6
million, which may be tripled by the court (to $6 million) for
“aggravated violations.”
! Violators may be fined, or sentenced to up to 3 or five years in
prison (depending on the offense), or both, for accessing someone
else’s computer without authorization and using it to send multiple
commercial e-mail messages; sending multiple commercial e-mail
messages with the intent to deceive or mislead recipients or ISPs as
to the origin of such messages; materially falsifying header
information in multiple commercial e-mail messages; registering for
5 or more e-mail accounts or online user accounts, or 2 or more
domain names, using information that materially falsifies the identity
of the actual registrant, and sending multiple commercial e-mail
messages from any combination of such accounts or domain names;
or falsely representing oneself to be the registrant or legitimate
successor in interest to the registrant of 5 of more Internet Protocol
addresses, and sending multiple commercial e-mail messages from
such addresses. “Multiple” means more than 100 e-mail messages
during a 24-hour period, more than 1,000 during a 30-day period, or
more than 10,000 during a one-year period. Sentencing
enhancements are provided for certain acts.
! The Federal Communications Commission, in consultation with the
FTC, must prescribe rules to protect users of wireless devices from
unwanted commercial messages. (See CRS Report RL31636 for
more on this topic.)
Conversely, the act does not —
! Create a “Do Not Email registry” where consumers can place their
e-mail addresses in a centralized database to indicate they do not
want commercial e-mail. The law requires only that the FTC
develop a plan and timetable for establishing such a registry and to
inform Congress of any concerns it has with regard to establishing
it.
! Require that consumers “opt-in” before receiving commercial e-
mail.
! Require commercial e-mail to include an identifier such as “ADV”
in the subject line to indicate it is an advertisement. The law does
require the FTC to report to Congress within 18 months of
enactment on a plan for requiring commercial e-mail to be
identifiable from its subject line through use of “ADV” or a
comparable identifier, or compliance with Internet Engineering
Task Force standards, or an explanation of any concerns FTC has
about such a plan.
! Include a “bounty hunter” provision to financially reward persons
who identify a violator and supply information leading to the

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CRS-7
collection of a civil penalty, although the FTC must submit a report
to Congress within nine months of enactment setting forth a system
for doing so.
Opt-In, Opt-Out, and a “Do Not Email” Registry
Discussion. Much of the debate on how to stop spam focuses on whether
consumers should be given the opportunity to “opt-in” (where prior consent is
required) or “opt-out” (where consent is assumed unless the consumer notifies the
sender that such e-mails are not desired) of receiving UCE or all commercial e-mail.
The CAN-SPAM Act is an “opt out” law, requiring senders of all commercial e-mail
to provide a legitimate11 opt-out opportunity to recipients.
During debate on the CAN-SPAM Act, several anti-spam groups argued that the
legislation should go further, and prohibit commercial e-mail from being sent to
recipients unless they opt-in, similar to a policy adopted by the European Union (see
below). Eight U.S. groups, including Junkbusters, the Coalition Against Unsolicited
Commercial Email (CAUCE), and the Consumer Federation of America, wrote a
letter to several Members of Congress expressing their view that the opt-out approach
(as in P.L. 108-187) would “undercut those businesses who respect consumer
preferences and give legal protection to those who do not.”12 Some of the state laws
(see below) adopted the opt-in approach, including California’s anti-spam law.
The European Union adopted an opt-in requirement for e-mail, which became
effective October 31, 2003.13 Under the EU policy, prior affirmative consent of the
recipient must be obtained before sending commercial e-mail unless there is an
existing customer relationship. In that case, the sender must provide an opt-out
opportunity. The EU directive sets the broad policy, but each member nation must
pass its own law as to how to implement it.14
As noted, Congress chose opt-out instead of opt-in, however. One method of
implementing opt-out is to create a “Do Not Email” registry where consumers could
place their names on a centralized list to opt-out of all commercial e-mail instead of
11 Some spam already contains instructions, usually to send a message to an e-mail address,
for how a recipient can opt-out. However, in many cases this is a ruse by the sender to trick
a recipient into confirming that the e-mail has reached a valid e-mail address. The sender
then sends more spam to that address and/or includes the e-mail address on lists of e-mail
addresses that are sold to bulk e-mailers. It is virtually impossible for a recipient to discern
whether the proffered opt-out instructions are genuine or duplicitous.
12 See [http://www.cauce.org/pressreleases/20030522.shtml].
13 See [http://www.europa.eu.int/scadplus/leg/en/lvb/l24120.htm].
14 Not all EU nations have yet passed such legislation. According to the Associated Press
(December 7, 2003, 12:30), the EU asked nine countries (Belgium, Germany, Greece,
Finland, France, Luxembourg, the Netherlands, Portugal, and Sweden) to provide within two
months an explanation of when they will pass such legislation. AP identified six countries
that have taken steps to implement the EU law: Austria, Britain, Denmark, Ireland, Italy, and
Spain. Sweden reportedly adopted spam legislation in March 2004.

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CRS-8
being required to respond to individual e-mails. The concept is similar to the
National Do Not Call registry where consumers can indicate they do not want to
receive telemarketing calls. During consideration of the CAN-SPAM Act, FTC
Chairman Timothy Muris and other FTC officials repeatedly expressed skepticism
about the advisability of a Do Not Email registry despite widespread public support
for it.15 One worry is that the database containing the e-mail addresses of all those
who do not want spam would be vulnerable to hacking, or spammers otherwise might
be able to use it to obtain the e-mail addresses of individuals who explicitly do not
want to receive spam. In an August 19, 2003, speech to the Aspen Institute, Mr.
Muris commented that the concept of a Do Not Email registry was interesting, “but
it is unclear how we can make it work” because it would not be enforceable.16 “If it
were established, my advice to consumers would be: Don’t waste the time and effort
to sign up.”
Following initial Senate passage of S. 877, an unnamed FTC official was quoted
by the Washington Post as saying that the FTC’s position on the registry is
unchanged, and “Congress would have to change the law” to require the FTC to
create it.17 After the House passed S. 877, Mr. Muris released a statement
complimenting Congress on taking a positive step in the fight against spam, but
cautioned again that legislation alone will not solve the problem.18
CAN-SPAM Act Provision. The CAN-SPAM Act did not require the FTC
to create a Do Not Email registry.19 Instead, it required the FTC to submit a plan and
timetable for establishing a registry, authorized the FTC to create it, and instructed
the FTC to explain to Congress any concerns about establishing it.
FTC Implementation. The FTC issued its report to Congress on June 15,
2004.20 The report concluded that without a technical system to authenticate the
origin of e-mail messages, a Do Not Email registry would not reduce the amount of
spam, and, in fact, might increase it. (See below, Restraining Spam—Non-
Legislative Approaches, for more on authentication.)
15 A survey by the ePrivacy Group found that 74% of consumers want such a list. Lisa
Bowman, Study: Do-Not-Spam Plan Winning Support, c|net news.com, July 23, 2003, 12:28
PM PT.
16 Available at [http://www.ftc.gov/speeches/muris/030819aspen.htm].
17 Krim, Jonathan. Senate Votes 97-0 to Restrict E-Mail Ads; Bill Could Lead to No-Spam
Registry. Washington Post, October 23, 2003, p. A1 (via Factiva).
18 FTC. Statement of Timothy J. Muris Regarding Passage of the Can-Spam Act of 2003.
November 21, 2003. [http://www.ftc.gov/opa/2003/11/spamstmt.htm]
19 The FTC issued a warning to consumers in February 2004 that a website (unsub.us)
promoting a National Do Not Email Registry is a sham and might be collecting e-mail
addresses to sell to spammers. See [http://www.ftc.gov/opa/2004/02/spamcam.htm].
20 U.S. Federal Trade Commission. National Do Not Email Registry: A Report to Congress.
Washington, FTC, June 2004. A press release, and a link to the report, is available at
[http://www.ftc.gov/opa/2004/06/canspam2.htm].

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CRS-9
The FTC report stated that “spammers would most likely use a Registry as a
mechanism for verifying the validity of e-mail addresses and, without authentication,
the Commission would be largely powerless to identify those responsible for
misusing the Registry. Moreover, a Registry-type solution to spam would raise
serious security, privacy, and enforcement difficulties.” (p. i) The report added that
protecting children from “the Internet’s most dangerous users, including
pedophiles,” would be difficult if the Registry identified accounts used by children
in order to assist legitimate marketers from sending inappropriate messages to them.
(p. i) The FTC described several registry models that had been suggested, and
computer security techniques that some claimed would eliminate or alleviate security
and privacy risks. The FTC stated that it carefully examined those techniques — a
centralized scrubbing of marketers’ distribution lists, converting addresses to one-
way hashes (a cryptographic approach), and seeding the Registry with “canary” e-
mail addresses — to determine if they could effectively control the risks “and has
concluded that none of them would be effective.” (p. 16)
The FTC concluded that a necessary prerequisite for a Do Not Email registry
is an authentication system that prevents the origin of e-mail messages from being
falsified, and proposed a program to encourage the adoption by industry of an
authentication standard. If a single standard does not emerge from the private sector
after a sufficient period of time, the FTC report said the Commission would initiate
a process to determine if a federally mandated standard is required. If the
government mandates a standard, the FTC would then consider studying whether an
authentication system, coupled with enforcement or other mechanisms, had
substantially reduced the amount of spam. If not, the Commission would then
reconsider whether or not a Do Not Email registry is needed.
Labels
Discussion. Another approach to restraining spam is requiring that senders
of commercial e-mail use a label, such as “ADV,” in the subject line of the message,
so the recipient will know before opening an e-mail message that it is an
advertisement. That would also make it easier for spam filtering software to identify
commercial e-mail and eliminate it. Some propose that adult-oriented spam have a
special label, such as ADV-ADLT, to highlight that the e-mail may contain material
or links that are inappropriate for children, such as pornography.
CAN-SPAM Act Provision. The CAN-SPAM Act: (1) requires clear and
conspicuous identification that a commercial e-mail is an advertisement, but is not
specific about how or where that identification must be made; (2) requires the FTC
to prescribe warning labels for sexually-oriented e-mails within 120 days of
enactment; and (3) requires the FTC to submit a report within 18 months of
enactment setting forth a plan for requiring commercial e-mail to be identifiable from
its subject line using ADV or a comparable identifier, or by means of compliance
with Internet Engineering Task Force standards. However, the clear and conspicuous
identification that a commercial e-mail is an advertisement, and the warning label for
sexually-oriented material, are not required if the recipient has given prior affirmative
consent to receipt of such messages.

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CRS-10
FTC Implementation. On May 19, 2004, an FTC rule regarding labeling of
sexually oriented commercial e-mail went into effect. The rule was adopted by the
FTC (5-0) on April 13, 2004. A press release and the text of the ruling are available
on the FTC’s website at [http://www.ftc.gov/opa/2004/04/adultlabel.htm]. The rule
requires that the mark “SEXUALLY-EXPLICIT” be included both in the subject line
of any commercial e-mail containing sexually oriented material, and in the body of
the message in what the FTC called the “electronic equivalent of a ‘brown paper
wrapper.’” The FTC explained that the “brown paper wrapper” is what a recipient
initially sees when opening the e-mail, and it may not contain any other information
or images except what the FTC prescribes. The rule also clarifies that the FTC
interprets the CAN-SPAM Act provisions to include both visual images and written
descriptions of sexually explicit conduct.
Other FTC Implementation Actions
The FTC is also working on other issues identified in the act, including:
! how to define the relevant criteria to facilitate determination of an e-
mail’s “primary purpose”;
! whether to modify the definition in the act of “transactional or
relationship messages”; whether to modify the 10-day time period
specified in the act within which an opt-out request must be
honored; and
! what activities and practices, if any, should be added to the list of
aggravated violations specified in the act; any additional regulations
that might be needed to help implement the act.
The comment period for these topics under an Advance Notice of Proposed
Rulemaking [http://www.ftc.gov/opa/2004/03/canspam.htm] has closed.
The CAN-SPAM Act also requires the Federal Communications Commission
(FCC) to issue regulations concerning spam on wireless devices such as cell phones.
See CRS Report RL31636 for more information about wireless spam.
Legal Actions Based on the CAN-SPAM Act
On April 29, 2004, the FTC announced that it had filed a civil lawsuit against
a Detroit-based spam operation, Phoenix Avatar, and the Department of Justice
(DOJ) announced that it had arrested two (and were seeking two more) Detroit-area
men associated with the company who are charged with sending hundreds of
thousands of spam messages using false and fraudulent headers.21 The FTC charged
Phoenix Avatar with making deceptive claims about a diet patch sold via the spam
2 1 ( 1 ) F T C A n n o u n c e s F i r s t C a n - S p a m A c t C a s e s .
[http://www.ftc.gov/opa/2004/04/040429canspam.htm); (2) Department of Justice
Announces Arrests of Detroit-Area Men on Violations of the ‘Can-Spam’ Act.
[http://www.usdoj.gov/opa/pr/2004/April/04_crm_281.htm].

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CRS-11
in violation of the FTC Act, and with violations of the CAN-SPAM Act because the
spam did not contain a valid opt-out opportunity and the “reply to” and “from”
addresses were fraudulent. The DOJ filed criminal charges against the men under the
CAN-SPAM Act for sending multiple commercial e-mails with materially false or
fraudulent return addresses. According to the FTC, since January 1, 2004, among the
spam forwarded by consumers to the FTC, about 490,000 were linked to Avatar
Phoenix.
The FTC simultaneously announced that it had filed a legal action against an
Australian spam enterprise operating out of Australia and New Zealand called Global
Web Promotions. The FTC stated that it was assisted by the Australian Competition
and Consumer Commission and the New Zealand Commerce Committee in bringing
the case. According to the FTC, since January 1, 2004, among the spam forwarded
by consumers to the FTC, about 399,000 are linked to Global Web Promotions. The
FTC charges that a diet patch, and human growth hormone products, sold by Global
Web Promotions are deceptive and in violation of the FTC Act. The products are
shipped from within the United States. The FTC further charges that the spam
violates the CAN-SPAM Act because of fraudulent headers.
Separately, four of the largest ISPs — AOL, Earthlink, Microsoft, and Yahoo
— filed civil suits under the CAN-SPAM Act against hundreds of alleged spammers
in March 2004.22 The suits were filed in federal courts in California, Georgia,
Virginia and Washington. Additional suits since have been filed.
Reaction to the CAN-SPAM Act
Both praise and criticism greeted enactment of the CAN-SPAM Act. Among
those praising the law are marketing groups such as the DMA,23 ISPs such as
America Online,24 and Microsoft chairman Bill Gates.25 Generally, they support a
single federal law, instead of a “patchwork quilt” of state laws, and legislation that
permits “legitimate” commercial e-mail while taking measures against fraudulent e-
mail. The DMA did express reservations, however, about the provision authorizing
the FTC to create a “Do Not Email” registry, even though the law does not, in fact,
require the FTC to do so.
22 Mangalindan, Mylene. Web Firms File Spam Suit Under New Law. Wall Street Journal,
March 11, 2004, p. B4, via Factiva.
23 Direct Marketing Association. Senate Updates Spam Bill; Must Return to House for
Final Action. News Release, November 25, 2003
[http://www.the-dma.org/cgi/dispnewsstand?article=1662+++++]
24 America Online, an Industry Leader in the Fight for Tougher Anti-Spam Laws, Applauds
Bipartisan Congressional Agreement and Action on Tough New Spam Laws, America
Online, Press Release November 21, 2003
[http://media.aoltimewarner.com/media/newmedia/cb_press_view.cfm?release_num=552
53625]
25 Gates, Bill. A Spam-Free Future. Washington Post, November 24, 2003, p. A 21 (via
Factiva).

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CRS-12
Some commercial e-mailers also appeared pleased. For example, Scott Richter,
the president of an e-mail marketing firm in Colorado, expressed relief that the
federal law preempted a stricter California law that was slated to become effective
January 1, 2004 (discussed below).26
Critics include those who wanted opt-in legislation, including advocates of
California’s opt-in law. California State Senator Debra Bowen was quoted as saying
that the CAN-SPAM Act, “... doesn’t can spam. It legalizes it.... It’s full of
loopholes. It’s difficult to enforce. It’s weaker than many state laws.”27 The
Coalition Against Unsolicited Commercial E-Mail (CAUCE) expressed
disappointment with the final version of the law, saying that it “fails the most
fundamental test of any anti-spam law, in that it neglects to actually tell any
marketers not to spam.”28 Another criticism is that the law does not allow
individuals to sue spammers, only the FTC, ISPs, and state attorneys general can sue.
The effectiveness of this legislation in reducing spam probably cannot be
ascertained in the near term. One of the bill’s sponsors, Senator Conrad Burns,
acknowledged that “I don’t think you will see really a cutback in spam until someone
is caught and prosecuted and they know for sure that we are serious about the
enforcement of the law....”29
Another factor in the law’s effectiveness is that it does not necessarily affect
spam sent from other countries. Some observers anticipate that U.S.-based
spammers will simply move offshore. Members of Congress and others have called
for an international approach to restraining spam, which, as noted earlier, is a world-
wide problem.
Finally, the extent to which it reduces “spam” depends in part on how that word
is defined. Some consider spam to be only fraudulent commercial e-mail, and
anticipate that the civil and criminal penalties in the law may reduce the volume of
that type of commercial e-mail. Others consider spam to be any unsolicited
commercial e-mail, and since the law permits commercial e-mail to be sent as long
as it complies with the law’s requirements, they argue that consumers may see an
increase, not a decrease, in commercial e-mail.
26 Quoted in: Andrews, Edmund L. and Saul Hansell. Congress Set to Pass Bill That
Restrins Unsolicited E-Mail. New York Times, November 22, 2003, p. 1 (via Factiva).
27 Quoted in: Lee, Jennifer B. Antispam Bill Passes Senate by Voice Vote. New York
Times, November 26, 2003, p. 3 (via Factiva).
28 CAUCE Statement on House and Senate Spam Bill Vote. November 25, 2003. Available
at [http://www.cauce.org/news/index.shtml].
29 Quoted in: Lee, Jennifer B. Antispam Bill Passes Senate by Voice Vote. New York
Times, November 26, 2003, p. 3 (via Factiva).

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CRS-13
Restraining Spam: State Laws
According to the SpamLaws website [http://www.spamlaws.com], 36 states
passed laws regulating spam: Alaska, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine,
Maryland, Michigan, Minnesota, Missouri, Nevada, New Mexico, North Carolina,
North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota,
Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin, and
Wyoming. The specifics of each law varies. Summaries of and links to each law are
provided on that website. CRS Report RL31488, Regulation of Unsolicited
Commercial E-Mail, provides a brief review of the state laws and challenges to them.
The CAN-SPAM Act preempts state spam laws, but not other state laws that are
not specific to electronic mail, such as trespass, contract, or tort law, or other state
laws to the extent they relate to fraud or computer crime. California’s anti-spam law
is considered relatively strict, requiring opt-in for unsolicited commercial e-mail,
unless there is a prior business relationship (in which case, opt-out is required), and
would have become effective January 1, 2004. The impending implementation of
the California law is often cited as one of the factors that stimulated Congress to
complete action on a less restrictive, preemptive federal law before the end of 2003.30
Restraining Spam: Non-Legislative Approaches

The fact that the amount of spam grew despite passage of those state laws
suggests that legislation is not a sure solution to the spam problem. It is difficult to
determine so soon after the passage of the CAN-SPAM Act what effect it will have,
in part because it will take time for lawsuits to proceed through the courts.
Conflicting information is currently available. Statistics from Brightmail indicate
that the percentage of spam in Internet e-mail continues to grow,31 and a March 2004
study by the Pew Internet & American Life Project concluded that “growing numbers
of Internet users are becoming disillusioned with e-mail, despite the first national
anti-spam legislation which went into effect on January 1.”32 However, an America
Online (AOL) official reported on March 19, 2004 that the company experienced a
27% drop in spam since February 20, 2004.33
Many argue that legislation alone is insufficient. Senator McCain, for example,
was quoted as saying that he supported the passage of legislation, but is not
30 For example, see Glanz, William. House Oks Measure Aimed at Spammers; Senate
Likely to Approve Changes. Washington Times, November 22, 2003, p. A1 (via Factiva).
31 Statistics available at [http://www.brightmail.com] show the amount of spam as a
percentage of all Internet e-mail was 58% in December 2003, just prior to the law becoming
effective, and 62% in February 2004.
32 Pew, op. cit., p. 1.
33 Sullivan, Andy. AOL Says It Sees Sharp Decline in ‘Spam’ E-Mail. Reuters, March 19,
2004, 13:18 (via Factiva).

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CRS-14
optimistic about its effect: “I’ll support it, report it, vote for it, take credit for it, but
will it make much difference? I don’t think so.”34
In congressional testimony and other speeches, FTC Chairman Muris has
repeatedly argued that a combination of legislation, technological advancements, and
consumer education is needed. Calling spam “one of the most daunting consumer
protection problems that the Commission has ever faced ,” he noted that “Despite the
concerted efforts of government regulators, Internet service providers, and other
interested parties, the problem continues to worsen.”35 During congressional debate
on the CAN-SPAM Act, the White House, and the Departments of Justice and
Commerce also warned that federal legislation alone cannot solve the spam problem
— that development and adoption of new technologies also is needed.36,37
Mr. Muris cited two significant differences between spam and other types of
marketing. First, spammers can easily hide their identities and cross international
borders. Second, sending additional spam “is essentially costless” to the spammer;
the cost is borne by ISPs and recipients instead. This “cost shifting” means there is
no incentive to the spammer to reduce the volume of messages being sent, and a bulk
e-mailer testified at an FTC forum on spam that he could profit even if his response
rate was less than 0.0001%.38
ISPs are motivated to reduce spam because they want to retain subscribers who
might weary of spam and abandon e-mail entirely, reduce the need to upgrade server
capacity to cope with the traffic, and avoid the costs associated with litigation.
Though lawsuits may be costly, for the past several years, ISPs have, in fact, taken
spammers to court using laws that existed prior to the CAN-SPAM Act. As noted
above, America Online, Earthlink, Microsoft, and Yahoo filed lawsuits under the
provisions of the CAN-SPAM Act in March 2004. But the ISPs continue to look for
new approaches to reducing spam.
Spam filters are widely used today by ISPs, corporations, universities, and other
organizations. Spammers are aware of that, however, and routinely find methods for
defeating the filters by misspelling words, using symbols instead of letters, or
“spoofing” the return address (spoofing is discussed below). Coupled with the fact
that the filters may inadvertently block wanted e-mails, they are not considered an
ideal solution. Some of the other non-legislative approaches to reducing spam are
described below.
34 Chris Taylor. Spam’s Big Bang. Time, June 16, 2003, p. 52.
35 August 19, 2003 Aspen Institute speech
3 6 S t a t e m e n t o f A d m i n i s t r a t i o n P o l i c y . A v a i l a b l e a t
[http://www.whitehouse.gov/omb/legislative/sap/index-date.html]. Scroll down to S. 877.
37 U.S. Department of Justice. Joint Statement of the Departments of Justice and Commerce
on E-Mail Spam Legislation. Press Release 03-643. November 21, 2003. Available at
[http://www.usdoj.gov/opa/pr/2003/November/03_opa_643.htm]
38 Ibid.

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CRS-15
Securing Internet Connections
Spammers increasingly are taking advantage of “always on” Internet
connections, such as cable modems or Digital Subscriber Lines (DSL), belonging to
consumers who are unaware that spam is being routed through their computers. In
a January 2004 consumer alert entitled “Who’s Spamming Who? Could it Be You?,”
the FTC called on consumers to be vigilant about securing their computers by using
firewalls and anti-virus software, being cautious in opening e-mail attachments from
unknown senders, and taking other steps.39 The FTC estimated that 30% of all spam
is sent by compromised computers in home offices and living rooms.
In addition, the FTC and regulatory agencies in more than two dozen countries
announced “Operation Secure Your Server” in January 2004,40 an effort to close
“open relays” or “open proxies” in businesses that similarly can be used by spammers
to reroute their messages and thereby disguise their origin. The agencies sent letters
to “tens of thousands” of owners or operators of servers that might be used in this
manner urging them to take steps to protect their computers from misuse.
Authentication
Another alternative is to require senders to “authenticate” who they are so that
recipients may determine whether or not it is spam. As the FTC report on the
National Do Not Email Registry explained, when an e-mail message is transmitted
from a sender’s computer to a recipient’s computer, the Simple Mail Transfer
Protocol (SMTP) requires only that the receiving computer verify that a valid
transmission is being received, not whether the “servername” is the actual name of
the sending computer. That is, the receiving computer does not require
authentication of the sending computer. The only piece of information which must
be accurate is the recipient’s address. Others steps in the e-mail process similarly
do not require authentication.41
There are a variety of approaches to authentication.
Challenge-Response. “Challenge-response” software is one method of
authentication. It requires the sender to respond to an action requested in an
automatically generated return e-mail before the original e-mail reaches the intended
recipient. Challenge-response is based on the concept that spammers are sending e-
mail with automated systems that cannot read a return e-mail and respond to a
question (such as “how many kittens are in this picture”), but a person can, so if the
e-mail was sent by an individual rather than a bulk e-mail system, the person will
39 See [http://www.ftc.gov/bcp/conline/pubs/alerts/whospamalrt.htm].
40 See [http://www.ftc.gov/secureyourserver]. The other countries participating in this effort
are: Albania, Argentina, Australia, Brazil, Bulgaria, Canada, Chile, Colombia, Denmark,
Ecuador, Finland, Hungary, Jamaica, Japan, Lithuania, Norway, Panama, Peru, Romania,
Serbia, Singapore, South Korea, Switzerland, Taiwan, and the United Kingdom.
41 FTC National Do Not Email Registry report, op. cit., pp. 4-8 describe how the e-mail
system works.

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CRS-16
answer the question or perform a requested action and the e-mail will be delivered.
Earthlink offers this option to its subscribers. It is not clear to what extent such
software may become popular, however. Business Week outlined some of the
potential unintended consequences, including recipients not receiving confirmation
of orders placed over the Internet (which often are generated by automated systems),
and difficulty if the sender is using an Internet-access device that does not display
graphics (e.g., a Blackberry) or is visually impaired.42
Microsoft’s Three-Part Strategy: “Caller ID for E-Mail,” Certificates,
and “Postage”. In a February 24, 2004 speech,43 Microsoft Corp. Chairman Bill
Gates detailed three initiatives for dealing with the spam problem.
One of the initiatives deals with “spoofing,” where spammers use false
addresses—often legitimate e-mail addresses that the spammer obtained through
legitimate or illegitimate means—in the “from” line to avoid spam filters and deceive
recipients into opening the message. Mr. Gates announced that his company would
pilot test a “Caller ID for E-Mail” system to enable ISPs to determine if a “from”
line is spoofed. He said that Microsoft would make available a list of all the numeric
Internet addresses assigned to Microsoft computers that send out mail. Other ISPs
would then be able to check an incoming message purporting to be from a Microsoft
computer to determine if that actually was its origin. If not, then the message would
be blocked. Mr. Gates envisions other e-mail senders similarly making their numeric
addresses known in order to implement the system broadly. He noted that
Brightmail, Amazon.com, and Sendmail Inc. are working with Microsoft on this
initiative. Microsoft reportedly also has been working with AOL, Yahoo, and
Earthlink for about a year, but agreement on common technical standards has not
been reached.44 An AOL spokesman was quoted as saying that AOL welcomed Mr.
Gates’ announcement and that AOL would test the Microsoft system.45
For “legitimate” high-volume e-mail senders, Microsoft is proposing an
approach similar to what has been implemented in the Internet privacy arena, where
certain organizations offer “seals of approval” to websites that abide by certain
privacy principles. These “seals” are offered by organizations such as the Better
Business Bureau Online (BBB Online), WebTrust, or TRUSTe.46 Microsoft is
proposing a similar regime where trusted entities would establish “reasonable
behavior” practices, and issue a certificate that would indicate to a recipient or a
42 Stephen H. Wildstrom. A Spam-Fighter More Noxious Than Spam. Business Week, July
7, 2003, p. 21.
43 Microsoft. Bill Gates Outlines Technology Vision to Help Stop Spam. February 24, 2004.
[http://www.microsoft.com/presspass/press/2004/feb04/02-24RSAAntiSpamTechVision
PR.asp].
44 Krim, Jonathan. AOL Blocks Spammers’ Web sites. Washington Post, March 20, 2004,
p. A1 (via Factiva).
45 Ibid.
46 See CRS Report RL31408, Internet Privacy: Overview and Pending Legislation, for more
on Internet privacy seals.

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CRS-17
spam filter that the sender is not a spammer. The marketers reportedly would fund
the certificate system and pay for the certificates.47
The concept of requiring e-mail senders to pay postage for their messages,
analogous to traditional mail service, has been broached for several years on the
premise that it would increase the costs to spammers of sending out their messages,
making spamming less economical. Since the postage would probably apply to all
e-mail senders, however, there are concerns that it would restrain the use of e-mail,
and the concept has not been widely embraced. However, Microsoft is proposing a
variation wherein rather than paying money, the sender would be required to devote
a certain amount of computer processing time to each message as a demonstration
that it is not spam. Mr. Gates views this approach as beneficial to legitimate small
volume e-mail senders. The concept is based on the assumption that spammers send
millions of messages a day, spending only a fraction of a second on each message,
but that legitimate small-volume e-mail senders would have “an abundance of
computer processing power available. Although they can’t afford to spend cash for
a certificate, they can afford to spend a few seconds on each message.”48 Microsoft
has not ruled out the possibility of requiring a financial payment, however, which it
calls a “micropayment.”49 Details were not provided.
FTC’s Four Step Plan for Creating an Authentication Standard. The
FTC report on a National Do Not Email Registry (cited earlier) discussed ongoing
industry efforts at developing authentication standards. In addition to Microsoft’s
Caller ID for Email initiative, the Commission reported on a standard developed by
Meng Weng Won called SPF (sender policy framework), Yahoo!’s proposal for
“domain keys,” and efforts by an Internet Engineering Task Force (IETF) working
group. The FTC noted that estimates vary widely as to when e-mail authentication
will be reality: “Some believe that all e-mail will be authenticated within a year.
Others are less sanguine.”50
The Commission expressed its view that the marketplace should be given an
opportunity to test and phase-in an authentication standard, but added that the pace
might be accelerated by Commission support. The report identified several areas
where its support might be beneficial, such as focusing efforts so that smaller ISPs
and businesses, and individuals with their own domains, can ultimately use the
standard, and in evaluating the international implications of the standard. It
proposed a four-step plan: conducting a two-day “Authentication Summit”in the fall
of 2004; convening a Federal Advisory Committee to help the FTC develop an
authentication system if industry fails to produce a standard after a “sufficient” time;
mandating the use of an authentication standard if industry does not adopt one itself;
and subsequently evaluating whether the mandatory standard, combined with
47 Krim, op. cit.
48 Microsoft, op. cit.
49 Microsoft—Q&A: Microsoft’s Anti-Spam Technology Roadmap. February 24, 2004.
[http://www.microsoft.com/presspass/features/2004/Feb04/02-24CallerID.asp].
50 FTC National Do Not Email Registry report, op. cit., p. 13

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enforcement actions, is effective in reducing spam. If the answer to the last question
is no, the Commission would reconsider the need to create a Do Not Email registry.
Other Actions by ISPs
In addition to the activities described above, some ISPs are taking other actions.
For example, in 2004, AOL began blocking some of the websites that sell products
advertised by spammers. AOL subscribers who click on a Web link in a spam
message may receive an error message that a connection could not be established.
An AOL spokesman was quoted as saying that AOL determines which sites to block
based on complaints from subscribers.51
Earthlink reportedly blocks only websites that pretend to be associated with
Earthlink itself. In a practice called “phishing,” an e-mail sender pretends to be from
a company, such as Earthlink, and includes in the e-mail a link to a website that
mimics an actual Earthlink site. Recipients who link to the Website are asked to
provide personally identifiable information and may respond, believing they are
communicating with their ISP or another known entity. The information then may
be used for illegitimate purposes.
51 Krim, op. cit.

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CRS-19
Table 1. Major Provisions of the CAN-SPAM Act
Provision
P.L. 108-187 (S. 877)
Title
Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act
Definition of Commercial E-Mail
E-mail whose primary purpose is commercial advertisement or promotion of commercial product
or service, with exceptions.
Transactional or relationship message (as defined in the act) is not commercial e-mail.
FTC shall issue regulations within 12 months after enactment further defining the relevant criteria
to facilitate the determination of the “primary purpose” of a commercial e-mail message.
Definition of Unsolicited Commercial E-mail
Not defined.
Creates “Do Not Email” registry at FTC
No, but requires FTC to submit to Congress, within six months of enactment, plan and timetable
for creating such a registry; to explain any concerns it has about creating it; and to explain how it
would be applied with respect to children. Authorizes (but does not require) FTC to establish and
implement the plan.
Prohibits deceptive subject headings
Yes, in all commercial e-mail.
Prohibits false, misleading, or deceptive information in
No, but does not affect FTC’s authority to bring enforcement actions for materially false or
body of message
deceptive representations in commercial e-mail.
Prohibits transmission of e-mail from improperly or
Yes, in commercial e-mail prohibited under other sections of the act.
illegally harvested e-mail addresses

Also prohibits dictionary attacks, and using automated means to register for multiple e-mail or on-
line user accounts from which to transmit, or enable someone else to transmit unlawful
commercial e-mail as defined by the act.
Prohibits sending e-mails through computers accessed
Prohibits accessing a computer without authorization and transmitting multiple commercial e-mail
without authorization
messages from or through it.
Prohibits businesses from knowingly promoting
Yes
themselves with e-mail that has false or misleading
transmission information

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CRS-20
Provision
P.L. 108-187 (S. 877)
Penalties for falsifying sender’s identity
Yes
Requires FTC-prescribed “warning labels” on sexually
Yes, unless recipient has given prior affirmative consent to receipt of the message.
oriented material
Requires specific characters in subject line to indicate the
No, but commercial e-mail must provide clear and conspicuous identification that it is an
message is an advertisement
advertisement, but not if the recipient has given prior affirmative consent to receive the message.
Also, FTC must report to Congress within 18 months of enactment on plan for requiring
commercial e-mail to be identifiable from its subject line through use of “ADV” or comparable
identifier, or compliance with Internet Engineering Task Force standards, or an explanation of any
concerns FTC has about such a plan.
Requires opt-out mechanism
Commercial e-mail must provide clear and conspicuous notice of opportunity to opt-out, and
functioning e-mail return address or other Internet-based mechanism to which the recipient may
opt-out.
Sender cannot send commercial e-mail to recipient more than 10 days after recipient has opted out.
Sender, or anyone acting on sender’s behalf, cannot sell, lease, exchange, or otherwise transfer
recipient’s e-mail address for any purpose other than compliance with this act or if the recipient
has given express consent.
Opt out does not apply if recipient later opts back in by affirmative consent.
Damages or Penalties
Civil and criminal penalties; vary per violation.
Reward for first person identifying a violator and
No, but requires FTC to transmit a report to Congress within nine months of enactment that sets
supplying information leading to the collection of a civil
forth a system for rewarding those who supply information about violations, including granting a
penalty
reward of not less than 20% of civil penalty collected.
Private Right of Action
For ISPs only.

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Provision
P.L. 108-187 (S. 877)
Affirmative Defense/Safe Harbor
No, but in assessing damages, courts may consider whether defendant established and
implemented, with due care, reasonable practices and procedures to effectively prevent violations,
or the violation occurred despite commercially reasonable efforts to maintain compliance with
such practices and procedures.
Enforcement
By FTC, except for certain entities that are regulated by other agencies.
State action allowed
Yes, but must notify FTC or other appropriate regulator, which may intervene.
Effect on ISPs
ISPs may bring civil action in U.S. district court.
Does not affect the lawfulness or unlawfulness under other laws of ISP policies declining to
transmit, route, relay, handle, or store certain types of e-mail.
Supersedes state and local laws and regulations
Yes, but does not preempt other state laws that are not specific to electronic mail, such as trespass,
contract, or tort law, or other state laws to the extent that they relate to fraud or computer crime.
Provisions regarding spam on wireless devices
Requires Federal Communications Commission, in consultation with FTC, to promulgate rules
within 270 days of enactment to protect consumers from unwanted mobile service commercial
messages.

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