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

What are commercial emails?

Commercial email 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 emails are emails that typically promote for profit or revenue generating activities such as:

  • 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 email’s primary purpose is commercial?

  • If the email has only commercial content, then the primary purpose is commercial.
  • If email 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 email would conclude that the primary purpose of the message is to advertise or promote a product or service.

Relevant factors for evaluating the body of the email 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 email's primary purpose is commercial, now what?

The CAN-SPAM Act requires that all commercial emails 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 email 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 email must contain a valid return email address or Internet-based reply mechanism that will function for at least thirty (30) days following the transmission of the message.
  • Valid email information: The sender must make sure that the header (To, From, Subject/Topic, etc.), transmission, and routing information of the email are not false or misleading to a reasonable recipient.

Additional Requirements of CAN-SPAM

NIU must never sell, exchange or otherwise transfer the email 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 email to the address of someone who has opted-out, or have another entity send email to the address of someone who has opted-out, or have another entity send email on NIU’s behalf to that address.

The CAN-SPAM Act prohibits certain methods of generating email 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 email lists.
  • Knowingly relay or retransmit unlawful commercial emails from a computer that the sender has accessed without authorization
  • Using scripts or other automated means to register for multiple email or online user accounts form which to send (or allow another person to send) unlawful commercial email.

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 email. 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 email. Accordingly, an ISP may enforce more stringent policies regarding the use of its services.

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