No one wants to run seriously afoul of the law. No one wants to go to jail. But we live in an age in which a simple email message can send you to the slammer. Although unsolicited commercial email (UCE), or spam, isn't in the same category as, say, murder, it's almost universally hated, and that hate has led to the passage of a US law—the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) act—that makes some types of email illegal. Knowing how the law affects your messaging operations is both useful and important. Although I'm no lawyer, I want to attempt to explain some of the new law's finer points to help you stay on the right side of the folks with the badges. I also explain some provisions of the law that your users need to understand.
A Law Is Born
Over the past several years, spam has become increasingly prevalent and obnoxious. Long-time Internet users fondly remember a time when there was no spam. The common belief was that the Internet wasn't intended for commercial traffic. Of course, we all know what happened to that belief: It was buried in the gold rush to commercialize the Net. Ordinary users commonly receive 15 to 20 spam messages per day, and users (like me, unfortunately) whose addresses are widely distributed have seen that number rise into the hundreds. An arms race between spammers and their victims quickly developed, with a dizzying escalation of combative technologies and deployments. Unfortunately, technological antispam measures didn't carry the day, and many people began wondering about the possibility of passing laws to prohibit spam.
Of course, this inevitably led to the emergence of several arguments. The arguments regarding antispam laws can be filtered to three essential points:
- Antispam laws won't work because spammers can always send messages from somewhere outside the law's scope. For example, a spammer whose business is outlawed in Ohio can simply set up shop in Michigan, or in Brazil, or anywhere else Ohio law doesn't apply.
- Even if you identify spammers, someone still must enforce the law, which means either spending money on enforcement or leaving the law largely toothless.
- Antispam laws set a dangerous precedent. Even die-hard advocates of such laws have grudgingly admitted that inviting government to determine what kind of speech is "bad" or "illegal" is a poor idea—particularly given the diversity of opinions, beliefs, and lifestyles you find among the hundreds of millions of email users in the world.
None of these concerns has stopped the inexorable progress of state antispam laws. The state of Washington struck first, followed by a number of others, including California, Iowa, Louisiana, and Virginia. However, users soon saw that a patchwork of incompatible spam laws wasn't helping to quell the problem. The spam kept flowing. Advocates of legal solutions began to turn their efforts toward passing a national antispam law, and they succeeded in late 2003. President George W. Bush signed the CAN-SPAM Act into law in December 2003, and it took effect January 1, 2004. Understanding what this law does and doesn't permit is important because it has a potential impact on every business that sends email to anyone outside the business, including customers and partners.
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