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After years of consternation and debate, there’s finally a federal law on the books that will attempt to grapple with the growing problem of unsolicited commercial email, not so affectionately known as “spam.” President Bush has just signed into law the CAN-SPAM Act of 2003. The Act likely will go into effect on Jan. 1, 2004, will preempt all existing state statutes on the regulation of spam, and will authorize the Federal Trade Commission and the states’ attorneys general to enforce its provisions. Problem solved? Not so fast. SPAM STANDARDS The Act will not ban spam outright, but rather will create a set of standards that must be followed. For unsolicited commercial e-mail, the new regulations would prohibit senders from falsifying or disguising their true identity, using misleading subject lines, harvesting e-mail addresses using a couple of methods, or using an automated system generating electronic addresses by combining names, letters and numbers in numerous permutations. Businesses would not be allowed to promote themselves through false or misleading e-mails, and a legitimate return e-mail and physical postal address for the sender would be required, as would an opt-out mechanism. In addition, there must be conspicuous notice that the message is an advertisement or solicitation, and messages with sexually oriented material must be clearly identified. POTENTIALLY LIABLE PARTIES Potential liability under the Act is quite broad, as it implicates not only individuals actually distributing the spam, but also extends to companies who procure their services. In fact, if a company knowingly permits a third-party spammer to act on its behalf, it is subject to prosecution under the Act. Thus, companies or individuals enlisting the services of e-mail distributors had better take care to ensure that e-mails being sent on their behalf by distributors are in compliance with the law. Violators can be subject to stiff criminal penalties, which include fines and up to five years in prison. Civil damages can amount to as much as $250 per spam e-mail — which, obviously, can add up fast. Moreover, aggravated violations can cause civil damages to be tripled. The Act empowers federal and statute authorities, as well as Internet access providers, to institute civil actions against offenders. The Act further calls upon the FTC to develop a national “do not spam” registry comparable to the FTC’s “do not call” registry for telemarketers. The FTC has been given six months to submit a comprehensive plan to Congress for implementing the list, but the FTC has not been provided any real guidance as to how this registry is to be structured. The FTC is to implement the plan three months after review by several congressional delegates, and must also develop rules within 270 days to govern the transmission of unwanted mobile service commercial messages. CAUTION STILL NEEDED The emergence of a nationwide law governing spam — instead of the patchwork of varying anti-spam laws that have been adopted by more than half of the states — is a step in the right direction. Furthermore, the new federal law clearly has teeth in terms of its criminal and civil penalties. But, of course, having a law on the books is one thing; effective enforcement of that law is another matter. Spammers frequently are offshore, making legal action and prosecution difficult. And spammers are very crafty in the way they send e-mail and how that move around on the Internet, thus making it very difficult to identify the true culprit. So technological methods of blocking spam, like anti-spam filters, still need to be employed. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His Web site is www.sinrodlaw.com, and he can be reached at [email protected] . To receive a weekly e-mail link to these columns, please send him an e-mail with “Subscribe” in the subject line.

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