Chapter 10: Spam and the Law

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Introduction

On January 1, 2004, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act took effect, and the world rejoiced—at least, the antispam world did. Now, finally after years of constant abuse, spam was illegal and punishable by law, and many spam activists believed the ever-growing levels of spam would soon diminish. However, has this law changed anything? There are no signs of spam propagation reducing since the act came into effect; my own spam filter statistics show that so far, in this year alone, the amount of spam I have received has risen over 4 percent compared to last year. Statistically this follows a constant trend of spam circulation increasing as more people and organizations look to spam for an easy way to make money.

Interestingly, by legalizing and defining what constitutes spam, the government has effectively also defined what spam is not, giving many spammers a clear boundary to work within. Hypothetically, if I send spam that just happens to meet all the legal conditions set by the CAN-SPAM Act (making the spam legally correct), I cannot be sued or charged with any illegal activity. Even if I do break all the CAN-SPAM rules and regulations, it would prove fairly tough to track me down for prosecution. The recipients of my spam don’t know who I am, my spam came from an open proxy server in North Korea, and the reply address of the e-mail is (of course) fake. No matter how many laws are in place, successfully prosecuting a spammer comes down to simply being able to find and catch him or her.

This chapter will look at the fundamentals of CAN-SPAM, other related laws, and their repercussions on both spam and spammers. We then look into how to make your spam compliant with the acts and show how to avoid legal prosecution. Finally, we analyze recent court cases and their outcomes in which individuals and companies were prosecuted under the newly formed CAN-SPAM Act.

Note

A full copy of the CAN-SPAM Act is not included here, but various snippets are described when they’re related to the chapter’s content. If you’d like to learn more about the act (and any details that aren’t included in this overview), we strongly suggest you read the full documentation, which can be found at www.spamlaws.com/federal/108s877enrolled.pdf.

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