Both legal and business barriers prevent the use of unsolicited commercial e-mail, or spam. The legal barriers are clear cut. In particular, compliance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, CAN-SPAM Act of 2003, 15 USC 7701, will ensure the reduction or elimination of legal difficulties associated with spam. However, businesses such as Internet Service providers (ISPs) with finite computer resources may attempt to limit spam through the use of self-help technological means. One such self-help remedy is the use of spam traps to lawfully deny spammers access to the Internet. Spammers, however, employ dual-use spam to circumvent the ISP’s self-help remedy.

“Dual-use” spam is defined as unsolicited e-mail, sent indiscriminately to multiple mailing lists, individuals or groups e-mail, whose content is typically noncommercial, but can be used indirectly to assist spammers. For example, a spammer who would like to identify spam traps might send a mass e-mailing to raise money for the Red Cross. As noncommercial unsolicited e-mail, it is both lawful and unregulated by the CAN-SPAM Act. After raising money for the Red Cross, subsequently, a spammer uses the resulting responses to improve his commercial spam target list. This use violates neither the CAN-SPAM Act nor the Federal Trade Commission’s subsequent CAN-SPAM regulations, including the rule for the determination of the primary purpose of an e-mail for CAN-SPAM purposes.

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