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.
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.
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:
Relevant factors for evaluating the body of the e-mail are:
The CAN-SPAM Act requires that all commercial e-mails have the following characteristics:
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:
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.