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Date Last Reviewed:
03/22/2007

CAN-SPAM (Controlling the Assault of Non-Solicited Pornography And Marketing Act)

Can Spam Act

CAN-SPAM applies to commercial e-mail. It was passed into federal law in 2003 to control spam electronic mail messages. 

Spam is unwanted, unsolicited junk e-mail.  While spam is typically sent to a large number of recipients usually promoting a product or service, the CAN-SPAM Act is not limited to bulk e-mail; a single commercial e-mail can qualify.

Does CAN-SPAM apply to NIU e-mail?

Yes. The Federal Trade Commission has made it clear that just because an e-mail comes from a not-for-profit organization, this does not mean that the message is exempt.  The primary purpose of the e-mail determines whether it is bound by CAN-SPAM or not.

What are Commercial E-mails?

Commercial e-mail means "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” Commercial e-mails are e-mails that typically promote “for profit” or “revenue generating” activities; for example:

• Reservations for a spring break tour or alumni cruise
• Tickets for sporting and cultural events
• Subscriptions to journals or magazines

How do I know whether my e-mail’s primary purpose is commercial?

To determine whether an e-mail’s primary purpose is commercial:

• If the e-mail has only commercial content, then the primary purpose is commercial.
• If e-mail has both commercial content and content that is neither commercial nor “transactional or relationship,” then the primary purpose is commercial if either:
  • A recipient reasonably interpreting the subject line would conclude that the message advertises or promotes a product or service, or
  • A recipient reasonably interpreting the body of the e-mail would conclude that the primary purpose of the massage is advertise or promote a product or service.

  Relevant factors for evaluating the body of the e-mail are:

  • The placement of commercial content at or near the beginning of the body of the message
  • How color, graphics, and type style and size are used to highlight the message’s commercial content.

My e-mail's primary purpose is commercial, now what?

The CAN-SPAM Act requires that all commercial e-mails have the following characteristics:

• Opt-out ability - There must be a clear and conspicuous notice in the body of the message explaining how recipients can “opt out” (i.e., prevent the transmission of future messages) by using the sender’s return e-mail address or Internet-based reply. NIU, or the responsible line of business or division, must honor “opt out” or unsubscribe requests within ten (10) business days of such request’s receipt.
• Valid return address - The e-mail must contain a valid return e-mail address or Internet-based reply mechanism that will function for at least thirty (30) days following the transmission of the message.  
• Valid e-mail information - The sender must make sure that the header (”To,” “From,” “Subject/Topic,” etc.), transmission, and routing information of the e-mail are not false or misleading to a reasonable recipient. 

Additional Requirements of CAN-SPAM

NIU must never sell, exchange or otherwise transfer the e-mail addresses of recipients who have made an “opt out” or unsubscribe request, except as is necessary to comply with the CAN-SPAM Act.  Therefore, NIU cannot knowingly help another entity send e-mail to the address of someone who has opted-out, or have another entity send e-mail to the address of someone who has opted-out, or have another entity send e-mail on NIU’s behalf to that address.

The CAN-SPAM Act prohibits certain methods of generating e-mail lists:

• Harvesting electronic mail addresses of the users of a website, proprietary service, or other online public forum operated by another person, without the authorization of such person.
• Using dictionary attacks and other automated, random methods of generating e-mail lists.
• Knowingly relay or retransmit unlawful commercial e-mails from a computer that the sender has accessed without authorization
• Using scripts or other automated means to register for multiple e-mail or online user accounts form which to send (or allow another person to send) unlawful commercial e-mail.

Preemption of the Illinois Electronic Mail Act, 815 ILCS 511/1 et seq.

By its terms, CAN-SPAM preempts all existing state spam laws, except for state laws that prohibit falsity or deception in any portion of commercial e-mail.  The Illinois electronic Mail Act does prohibit false of misleading information in the subject line. 815 ILCS 511/10(a)(ii).  Also, state consumer protection and anti-fraud laws are not preempted by the Act. A violation of the Illinois Electronic Mail Act constitutes an unlawful practice under the Illinois Consumer Fraud and Deceptive Business Practices Act. See 815 ILCS 505/1 et seq. So, while many portions of the Illinois law are now pre-empted by CAN-SPAM (e.g., labeling commercial e-mail as ADV), the anti-fraudulent portions of that law still remain in effect.

In addition to the preemption provision, the CAN-SPAM Act specifically states that it does not have any effect on the lawfulness or unlawfulness of any ISP policies regarding the transmission or handling of e-mail.  Accordingly, an ISP may enforce more stringent policies regarding the use of its services.