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"Spam": An Overview of Issues Concerning Commercial Electronic Mail

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Abstract:

Spam, also called unsolicited commercial email (UCE) or "junk email," aggravates many computer users. Not only can spam be a nuisance, but its cost may be passed on to consumers through higher charges from Internet service providers who must upgrade their systems to handle the traffic. Also, some spam involves fraud, or includes adult-oriented material that offends recipients or that parents want to protect their children from seeing. Proponents of UCE insist it is a legitimate marketing technique that is protected by the First Amendment, and that some consumers want to receive such solicitations.

On December 16, 2003, President Bush signed into law the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, P.L. 108187. It went into effect on January 1, 2004. The CAN-SPAM Act does not ban UCE. Rather, it allows marketers to send commercial email as long as it conforms with the law, such as including a legitimate opportunity for consumers to "opt-out" of receiving future commercial emails from that sender. It preempts state laws that specifically address spam, but not state laws that are not specific to email, such as trespass, contract, or tort law, or other state laws to the extent they relate to fraud or computer crime. It does not require a centralized "Do Not Email" registry to be created by the Federal Trade Commission (FTC), similar to the National Do Not Call registry for telemarketing. The law requires only that the FTC develop a plan and timetable for establishing such a registry, and to inform Congress of any concerns it has with regard to establishing it. The FTC submitted a report to Congress on June 15, 2004, concluding that a Do Not Email registry at this time would not reduce spam, and might increase it.

The extent to which the law reduces "spam" overall may be debated if for no other reason than there are various definitions of that term. Proponents of the law argue that consumers are most irritated by fraudulent email, and that the law should reduce the volume of such email because of the civil and criminal penalties included therein. Opponents counter that consumers object to unsolicited commercial email, and since the law legitimizes commercial email (as long as it conforms with the law's provisions), consumers actually may receive more, not fewer, UCE messages. Thus, whether or not "spam" is reduced depends in part on whether it is defined as only fraudulent commercial email, or all unsolicited commercial email.

Many observers caution that consumers should not expect any law to solve the spam problem -- that consumer education and technological advancements also are needed. The FTC and Consumers Union are among the groups offering consumer education tips. The Internet industry is working on technological solutions, such as creating an authentication standard to reduce "spoofing," where spammers use false addresses in the "from" line to avoid spam filters and deceive recipients into opening the message.

Spam on wireless devices such as cell phones is discussed in CRS Report RL31636. This is the final edition of this report.