Federal Trade CommissionFederal Trade Commissionwww.ftc.govwww.ftc.gov

FTC & SpamFTC & Spam

Federal Trade CommissionFederal Trade Commission

CAN-SPAM Act of 2003CAN-SPAM Act of 2003(“(“CControlling the ontrolling the AAssault of ssault of NNon-on-SSolicited olicited

PPornography ornography aand nd MMarketing arketing ActAct”)”)

Effective date of January 1, 2004 Effective date of January 1, 2004

Creates civil and criminal violationsCreates civil and criminal violations

May be enforced by federal and state May be enforced by federal and state law enforcement and ISPslaw enforcement and ISPs

Directs the FTC to establish rules, Directs the FTC to establish rules, conduct studies, write reportsconduct studies, write reports

Federal Trade CommissionFederal Trade Commission

CAN-Spam Act: New Civil CAN-Spam Act: New Civil ViolationsViolations

False or misleading header informationFalse or misleading header information Deceptive subject linesDeceptive subject lines Failure to provide an opt-out method and Failure to provide an opt-out method and

honor opt-out requestshonor opt-out requests Failure to include:Failure to include:

Identification that the message is an Identification that the message is an advertisement advertisement

Sender’s valid physical postal addressSender’s valid physical postal address For “sexually oriented” messages:For “sexually oriented” messages:

Failure to include warning label Failure to include warning label Failure to require additional steps to view Failure to require additional steps to view

material after opening messagematerial after opening message

Federal Trade CommissionFederal Trade Commission

CAN-Spam Act: New Civil CAN-Spam Act: New Civil ViolationsViolations

Aggravated violations for spam Aggravated violations for spam plusplus:: HarvestingHarvesting Dictionary attackDictionary attack Using someone else’s computer without Using someone else’s computer without

their authorizationtheir authorization Automated creation of multiple email Automated creation of multiple email

accountsaccounts

FTC may specify other aggravated FTC may specify other aggravated violations to cover practices violations to cover practices contributing to the spam problemcontributing to the spam problem

Federal Trade CommissionFederal Trade Commission

CAN-Spam Act: Civil CAN-Spam Act: Civil EnforcementEnforcement

FederalFederal FTC Enforcement:FTC Enforcement:

Similar to FTC Act enforcement: Cease & desist Similar to FTC Act enforcement: Cease & desist orders and injunctive relief without proving orders and injunctive relief without proving knowledgeknowledge

Plus, civil penalties up to $11,000 per violation: Plus, civil penalties up to $11,000 per violation: must show actual knowledge or knowledge fairly must show actual knowledge or knowledge fairly impliedimplied

Other federal regulators can enforce the Act Other federal regulators can enforce the Act against entities outside FTC jurisdictionagainst entities outside FTC jurisdiction

FCC will oversee regulation of wireless spamFCC will oversee regulation of wireless spam

Federal Trade CommissionFederal Trade Commission

CAN-Spam Act: Civil CAN-Spam Act: Civil EnforcementEnforcement

State and PrivateState and Private State Enforcement:State Enforcement:

Injunctive reliefInjunctive relief Damages: Actual loss or up to $250 per violation ($2 million cap, Damages: Actual loss or up to $250 per violation ($2 million cap,

but not for false or misleading headers)but not for false or misleading headers) May receive treble damages for willful, knowing or aggravated May receive treble damages for willful, knowing or aggravated

violationsviolations State spam laws are preempted unless they prohibit falsity or State spam laws are preempted unless they prohibit falsity or

deception or are not spam-specificdeception or are not spam-specific

ISP Enforcement:ISP Enforcement: Injunctive reliefInjunctive relief Damages: Actual loss or up to $25 per violation ($1 million cap)Damages: Actual loss or up to $25 per violation ($1 million cap)

For false or misleading headers, up to $100 per violation and no capFor false or misleading headers, up to $100 per violation and no cap May receive treble damages for willful, knowing or aggravated May receive treble damages for willful, knowing or aggravated

violationsviolations No private claim for spam recipientNo private claim for spam recipient

Federal Trade CommissionFederal Trade Commission

CAN-Spam Act: New Criminal CAN-Spam Act: New Criminal ViolationsViolations

New criminal violations for spam-New criminal violations for spam-related unauthorized access and related unauthorized access and spoofing, and false header and email spoofing, and false header and email account informationaccount information

Criminal penalties include Criminal penalties include imprisonment and forfeiture of assetsimprisonment and forfeiture of assets

Federal Trade CommissionFederal Trade Commission

CAN-Spam Act: CAN-Spam Act: New Rules, Studies & ReportsNew Rules, Studies & Reports

Additional rules interpreting certain Additional rules interpreting certain CAN-Spam provisionsCAN-Spam provisions

Studies on the feasibility of:Studies on the feasibility of: Do-Not-Email RegistryDo-Not-Email Registry Bounty system to promote enforcementBounty system to promote enforcement ADV Labeling ADV Labeling

Report to Congress due in 1 yearReport to Congress due in 1 year

Federal Trade CommissionFederal Trade Commission

Questions?Questions?

ContactContact

Elena Gasol RamosElena Gasol Ramos

Legal Advisor Legal Advisor

for international Consumer Protectionfor international Consumer Protection

US Federal Trade CommissionUS Federal Trade Commission

Tel: 202 326 3102Tel: 202 326 3102

egasolramos@ftc.govegasolramos@ftc.gov

Federal Trade CommissionFederal Trade Commissionwww.ftc.govwww.ftc.gov

FTC & SpamFTC & Spam

FTC Staff presentation. Does not necessarily reflect the FTC Staff presentation. Does not necessarily reflect the views views

of the Commission or any individual Commissioner.of the Commission or any individual Commissioner.