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Summary:
Unsolicited commercial e-mail (UCE), also called "spam" or "junk e-mail," 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. On December 16, President Bush signed into law S. 877, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act. The law, P.L. 108-187, went into effect on January 1, 2004. The CAN-SPAM Act preempts state laws that specifically address spam, but not state laws that are not specific to e-mail, such as trespass, contract, or tort law, or other state laws to the extent they relate to fraud or computer crime. It does not ban unsolicited commercial e-mail. 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 e-mails from that sender. It does not require a centralized "do not e-mail" registry to be created by the Federal Trade Commission (FTC), similar to the National Do Not Call registry for telemarketing. The bill requires only that the FTC develop a plan and timetable for establishing a "do not e-mail" registry, and to inform Congress of any concerns it has with regard to establishing it. FTC Chairman Timothy Muris has specifically warned that he does not believe a "do not e-mail" registry would be enforceable or noticeably reduce spam. Mr. Muris and others caution that consumers should not expect any legislation to be a "silver bullet" for solving the spam problem; a combination of consumer education, technological advancements, and legislation is required. The extent to which P.L. 108-187 reduces "spam" may be debated if for no other reason than there are various definitions of that term. Proponents of the legislation argue that consumers are most irritated by fraudulent e-mail, and that the bill should reduce the volume of such e-mail because of the civil and criminal penalties included therein. Opponents counter that consumers object to unsolicited commercial e-mail, and since the bill legitimizes commercial e-mail (as long as it conforms with the law's provisions), consumers actually may receive more, not fewer, unsolicited commercial e-mail messages. Thus, whether or not "spam" is reduced depends in part on whether it is defined as only fraudulent commercial e-mail, or all unsolicited commercial e-mail. Spam on wireless devices such as cell phones is a growing concern, and is also addressed in P.L. 108-187. See CRS Report RL31636, Wireless Privacy: Availability of Location Information for Telemarketing for more on that topic. This report will be updated as events warrant.
