CAN-SPAM applies to commercial email. It was passed into federal law in 2003 to control spam electronic mail messages.
Spam is unwanted, unsolicited junk email. 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 email; a single commercial email can qualify.
Yes. 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 CAN-SPAM or not.
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; for example:
Relevant factors for evaluating the body of the email are:
The CAN-SPAM Act requires that all commercial emails have the following characteristics:
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:
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.