The CAN-SPAM Act: An Insufficient Response to the Growing Spam Problem

摘要

Although "Spam" is tasty in a can, it is never tasty when it lands in our e-mail inboxes. Spam is an especially pernicious form of advertising because of its low cost, high-volume nature. Traditional advertisers, such as telemarketers and junk mailers, incur significant costs by employing workers, paying long-distance telephone bills, and buying envelopes and paper. In contrast, spammers expend significantly less and even shift costs to recipients, who must sort through the voluminous spam they receive. Thus, spam's attractive nature has led to many abusive uses, which all contribute to the growing spam problem. As spam becomes a daily nuisance, various responses are being utilized to combat it. Earlier methods employed vigilantism in the forms of self-regulation and self-help, but more sophisticated methods quickly emerged. Those methods included suits against spammers under both common and state law doctrines and technological responses such as filtering. Then in December 2003, the federal government enacted the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act or "the Act") to provide a uniform federal body of law against spamming. While the Act attempts to curb the spam problem, it still has some shortcomings. Some of the criticism heaped upon the Act centers around its preemptive effects on stricter state spam laws, the severity of the penalties, and its alleged attempt to curb spammers' constitutional rights. Much of the criticism also accuses the Act of potentially increasing the amount of spam because the Act merely provides a set of guidelines for spammers on how to spam legally—in effect legitimizing spam. Many critics believe that the Act will lead more advertisers to rely on spam as their preferred method of advertising.