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On Tuesday, President Bush signed into law the artfully named “CAN-SPAM Act of 2003,” which represents the first attempt by the federal government at comprehensive regulation of mass unsolicited commercial e-mail. The CAN-SPAM Act also preempts the laws of some 38 states that seek to regulate this area. For those marketing their goods or services by mass e-mailings, the act introduces new limitations that make it more challenging to market electronically. The CAN-SPAM Act is unlikely, however, to materially decrease — and may actually increase — the amount of spam coming from foreign jurisdictions. The CAN-SPAM Act is just one of over a half a dozen pieces of anti-spam legislation introduced this year in reaction to the substantial increase in unsolicited e-mails received by individuals and businesses in the United States. It is also a reaction to the 38 sets of sometimes inconsistent anti-spam laws passed by various states, as it supersedes all of those laws (to the extent they directly relate to spam), and replaces much of what they address with a uniform set of laws. The act makes a number of findings in support of its existence, many of which are familiar to almost anyone who has used e-mail. For example, it acknowledges the importance of electronic mail for personal and commercial use; it discusses the threat that rapidly increasing levels of spam poses to the continued use of electronic mail; and it acknowledges the costs faced by computer owners and system operators who must deal with delivering and storing the spam, and by users who must read and dispose of it. The act also finds that spam decreases the utility and reliability of the e-mail system, as useful and desired messages get lost in spam clutter. Another finding familiar to many whose in-boxes are burdened by spam is that it frequently includes objectionable and sometimes pornographic material, with subject lines disguised to hide the true nature of the content, false return addresses, and non-working links that promise but fail to take spam recipients to places where they can choose not to receive similar messages in the future. The act also mentions that “senders of bulk unsolicited commercial electronic mail” (here, “spammers”) use programs that automatically “harvest” e-mail addresses from Web sites and bulletin boards and use them to fuel spam delivery. It points out that some states have tried to regulate spam, but in so doing have introduced differing and sometimes inconsistent standards and requirements. Coupled with that is the difficulty an e-mailer faces in determining the location of any specific e-mail address, since unlike postal addresses e-mail addresses bear no state-identifying marker. Perhaps most importantly, the act acknowledges that its provisions will not solve the problems associated with spam, and that “technological approaches” as well as “the pursuit of cooperative efforts with other countries” are needed to address the problems effectively. RESTRICTIONS ON SPAM The CAN-SPAM Act affects “commercial electronic mail messages.” These are electronic mail messages “the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” They expressly do not include messages relating to a commercial transaction that the recipient has agreed to enter into with the sender, that provide warranty information to the recipient, that relate to an “ongoing commercial relationship” between the sender and the recipient, that provide information related to an employment relationship, or that deliver goods or services such as software updates based on an earlier purchase by the recipient. While the CAN-SPAM Act does not prohibit spam, it does prohibit the use of many standard spammer tools, such as:

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