Kahn Gauthier Swick is investigating possible legal actions against email marketers who send unsolicited email in violation of the newly-enacted federal Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act). The act requires unsolicited commercial e-mail messages to be labeled and to include opt-out instructions and the sender's physical address. It prohibits the use of deceptive subject lines and false headers in such messages. Violators may get stiff civil fines and even get prison sentences as criminals. If you have received email that you think may be prohibited by the act, please forward all information to Kahn Gauthier, including a copy of the spam email.

The CAN-SPAM Act attempts to regulate rather than ban the practice of spamming, but it outlaws so-called fraudulent spam, where spammers use open relays or proxies to send their messages. Falsified email headers can now also be punished with prison terms, as can sending sexually-oriented email which is not properly labeled. The NANAS sightings newsgroup (a large collection of spam, updated continuously) doesn’t contain one spam message that is CAN-SPAM compliant.

There's little doubt that spam is a serious nuisance, but there is insufficient appreciation for how serious a threat it is to our economy. Spam now constitutes between half and two-thirds of all Internet e-mail traffic, according to the data collected by spam watchdog organizations. This staggering volume of spam threatens the viability of e-mail as a communications tool--for both businesses and individuals. As spammers venture outside of e-mail, they threaten to inhibit the adoption of new communications technologies, such as wireless SMS (short messaging service) or instant messaging. It's not just volume that is of grave concern-- spam is becoming increasingly fraudulent and offensive. Adult content spam and scam-spam is increasing by leaps and bounds.

Consumers, Internet service providers, businesses and marketers all need to take an active role in the fight against spam. Consider the parallels in the offline world. While there are many "laws of the road" for drivers, still the public wants the auto industry to build as many safety features into cars as they possibly can. Similarly, while "breaking and entering" is a felony crime, homeowners use locks, bars and alarm systems to protect themselves from robbery.

The CAN-SPAM Act of 2003 was introduced by Senators Conrad R. Burns (R-MT) and Ron Wyden (D-OR) in April 2003, with minor changes from the previous year's version, S. 630 (2002). Two other bills (S. 1231 and S. 1293) were subsequently merged into it. The final version was approved by the Senate in November 2003 and by the House of Representatives in December 2003, and was signed into law by President Bush on December 16, 2003.