What can be done about email spam?

In 2003, Congress passed the Controlling the Assault of Non­-Solicited Pornography and Marketing Act, otherwise known as the CAN-SPAM Act of 2003. The CAN-SPAM Act prohibits the distri­bution of certain unsolicited electronic mail, or "spam." The Act imposes both monetary penalties and incarceration upon violators but does not create a private cause of action on the part of the recipient of spam. Instead, the Act is enforced by a combina­tion of Federal Trade Commission proceedings, criminal prosecu­tion, state attorney general actions, and private lawsuits brought by Internet service providers. Penalties can be severe, and if the violations of the Act are committed willingly and knowingly, or if the violation included harvesting email addresses or the auto­matic creation of electronic mail addresses, the court may treble the damages awarded.

The Act makes it a crime to send unsolicited commercial electronic mail containing fraudulent header information and prohibits certain methods of generating electronic mail address lists. The Act further prohibits the transmission of commercial electronic mail to recipients who have "opted out" of receiv­ing such communications from the sender. It also creates a regulatory scheme by which certain identifying information is required in all commercial electronic mail and directs the Federal Trade Commission (FTC) to develop a plan for implementing a national Do-Not-Email registry.

It is important to note that many states have also enacted their own version of anti-spam acts. While the federal Act pre­empts most of these state statutes, the federal Act does not pre­empt state laws that are not specific to spam, including state trespass, contract, or tort law. Similarly, the federal Act does not preempt states laws that relate to acts of fraud or computer crimes. With regard to computer crimes, most states have also enacted computer crime laws that carry severe criminal penal­ties. Generally speaking, unauthorized access to a computer or computer network is a criminal act. Indeed, unauthorized access to a computer that is used in inter­state or foreign commerce or communication is a federal crime under the Computer Fraud and Abuse Act (CFAA), codified at 18 U.S.C. § 1030. If this same conduct is performed for the transmission of unsolicited bulk electronic mail, penalties can be more severe, with courts increasingly categorizing this type of conduct as not only a violation of anti-spam statutes but also a form of trespass to property.

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