Introduction
The use of e-mail services has greatly revolutionized the society in numerous areas. In the process, this usage has created its share of new difficulties, such as the influx of spam. According to Arora (2006), spam may be defined as unsolicited email, often of a commercial nature, sent indiscriminately to multiple mailing lists, individuals, or newsgroups. It can also be referred to as junk e-mail. Generally, spam is a nuisance for e-mail users as it clogs up email inboxes, imposes costs on Internet servers that run email programs, and invades people’s privacy.
The CAN-SPAM Act: In response to the exponential rise in spam, Congress enacted the CAN-SPAM Act of 2003.
Purpose of the Act
The primary goal of the CAN-SPAM Act is to restrain people from engaging in deceptive and offensive email practices. It also attempts to bring to curb the electronic distribution of unsolicited pornographic stuff. The Act, however, concerns itself with almost all commercial email messages. Furthermore, the Act is also applicable to every business within or outside the United States. It affects private or public companies, non-profit making organizations, or individual entrepreneurs.
Although it was motivated by the impending effectiveness of tough anti-spam legislation in California that was signed into law on January 1, 2004, the CAN-SPAM Act supersedes any statute, regulation or rule of a state or political subdivision of any state that expressly regulates the use of email to send commercial messages.
Provisions of the Act
The CAN-SPAM Act has three main requirements. First, it prohibits commercial advertisement e-mail senders from distributing false electronic emails to recipients about the source or subject matter of their emails. Secondly, the Act requires all senders of emails to provide and comply with an opt-out mechanism in their emails so as to allow recipients to choose to stop receiving emails from a particular sender. Thirdly, the Act requires all senders of unsolicited commercial emails to provide a valid physical address and proper notification that the message is an advertisement.
In bringing the regulation into force, Congress had its focus on the costs that are imposed by spam on corporations, Internet Service Providers (ISPs), and email users who must either filter out spam or spend so much time deleting spam from their inboxes. Congress also recognized that recipients are entitled to a privacy right that allows them to decline the reception of any additional commercial electronic emails from the same source if they so wished. However, there are concerns that the current Congressional approach in addressing the problem of spam is incomplete because the Act only regulates unsolicited commercial emails, and that it does not reduce the amount of spam to a sufficient degree. Even though Congress has protected the privacy of email recipients’ against unsolicited commercial emails, consumers are still subjected to other forms of the vice, such as unregulated political spam (Arora, 2006).
Impact of CAN-SPAM Act on Consumers: The impact of CAN-SPAM Act on consumers may be analyzed by looking at different areas of effect. Specifically, this section will look at the decline in spam volume, the frustration faced by consumers, and the protection of consumers from pornographic emails. This includes protecting children, from receiving and viewing obscene spam.
Decline in Spam Volume and Consumer Frustration
According to FTC (2004), the establishment of the CAN-SPAM Act was meant to create expectations on the part of the public that the problem of spam was finally being dealt with effectively and that the effect of spam would disappear almost immediately. One of the challenges that needed to be addressed was the absence of an effective system for authenticating the source of email messages is largely blamed hindering enforcement in some cases leading to a slow enforcement process of the Act. As a result, the expectations of many have remained unfulfilled. However, there are also claims of the Act having been able to serve its purpose as was expected.
Using all sorts of tricks, spammers have been able to go round the system, and have managed to gain access to valid email addresses from the National Do Not Email Registry. These are the very email addresses that have been used by spammers to distribute electronic unsolicited mails to innocent consumers. Therefore, although a national registry of valid email addresses was made available, it did not have any beneficial impact on the spam problem. Apparently, the success of the registry was largely dependent upon the sender’s compliance with the law. Because of a lack of good will from the senders the registry system has been terribly abused and senders have demonstrated and continue to demonstrate that they will do whatever it takes to send out Unsolicited Commercial Emails (UCE) and will not police themselves.
As an example, spammers have continued to violate the Internet Service Providers’ (ISPs’) acceptable use policies by sending unsolicited bulk emails. Sadly, this is happening even as ISPs’ do everything within their powers to ensure that their policies are made publicly available to all. Again, spammers have chosen to ignore state laws that require all email solicitations to contain labels in the subject line of emails that clearly identify them as advertisements. All efforts to bring the vice to a stop are made difficult by the fact that most spammers are simply not complying with the provisions of the CAN-SPAM Act as expected. In spite of the existence of the Act, spammers continue to disguise their emails in such a way that they are able to bypass filters. They also make use of tactics that help them to conceal their identities. Therefore, as long as spammers can hide their identity and disguise their emails, they can rarely be held accountable and spam will continue to be a menace to the Internet users (FTC, 2004).
One problem associated with the Act is its inability to reduce the amount of commercial spam. Apparently, the amount of spam received by consumers actually increased after the implementation of the CAN-SPAM Act. As reported by the New York Times, junk e-mail on the Internet actually increased after Congress enacted the CAN-SPAM Act in 2003. Many consumers bitterly complained about the inadequacy of opt-out regulations even before the New York Times report was released. As one complainant noted, individual recipients were forced to take an affirmative step against each piece of unwanted email and this ended up wasting so much their time as well as money than the problem itself.
Some critics have argued that instead of an opt-out, adopting an opt-in approach would protect consumers in a significantly greater and more effective manner. Others are convinced that there is a need to offer incentives to spammers as a strategy to get them to comply with any opt-out requests. As a result, a more effective measure to deal with commercial spam is necessary. A different mechanism for regulation is also necessary given that the opt-out statute allowed spam to be regarded as being legal as long as senders followed its guidelines. In effect, Congress created legal spam, undermining its goal to eliminate unwanted spam. Additionally, the Act relaxed existing restrictions on spam by preempting tougher state regulations that made all UCE illegal. One solution proposed for the above issues was to have an opt-out regulation of political spam and an opt-in regulation of commercial spam. With the combined approach spammers are able to send unsolicited emails as long as recipients can prevent future unwanted emails.
A study undertaken by Majoras et al (2005) indicated that customers were receiving an enormous amount of spam in their inboxes when CAN-SPAM was enacted in 2003 but this later declined tremendously after the enactment. There was widespread concern that the onslaught of spam was destabilizing the email system and posing a serious threat to the rapidly increasing Internet economy. Notably, the deceptive nature of the vast majority of spam, the network disruptions that spam would cause and the use of spam as a vehicle for spreading viruses together posed a serious threat to consumers’ confidence in the Internet as a medium for electronic commerce. A significant development since the enactment of CAN-SPAM is that the volume of spam started to decrease. A report by MX Logic, an email filtering company, showed that during the first eight months of 2005, spam accounted for 67 percent of email passing through its system. This represented a nine percent reduction from the same period one year earlier. Some ISPs reported an even more dramatic decline of spam activity. For example, America Online (AOL) reported that its members received 75 percent less spam in the year 2004 than was received in 2003. A similar trend could be seen in other countries too (Majoras et al., 2005).
As noted earlier, one other problem associated with the CAN-SPAM Act is its failure to regulate political spam even though such a regulation is necessary and would be constitutional. The privacy right of the Act did not cater for the regulation of unsolicited political spam and because of this loop hole, political spam has continued to invade recipients’ privacy interests. Unless this is dealt with, it will be very easy for spammers to keep on disguising their emails and unfortunately the negative effects of such actions will seriously affect the consumer. Given that it is an inexpensive avenue to reach out to potential voters during campaigns, political emails are certainly a useful tool for political candidates. An example is the skillful use of the Internet by Howard Dean to create a grassroots campaign that propelled him to front runner status during the 2004 Democratic primary race (Aora, 2006). Judging from the success realized during the campaign, it is quite obvious that many politicians and elected officials will continue to use political scam as a cheap and effective resource to reach and woo as many supporters as possible. However, such annoying activities could have a very negative impact on consumers who may lose confidence in the use of Internet services and end up regarding them with a lot of suspicion. It is therefore important for Congress to take a proactive action in dealing with the regulation of political spam so as to remedy the problems resulting from political scam.
Although the innovation by Dean is exceptionally useful in increasing political participation, it is important for Congress to put in place stringent rules that will lead to the avoidance of any form of abuse that may affect the consumers negatively. As a matter of fact, the failure by Congress to regulate political spam has already caused dissatisfaction among the consumers. As an example, a California candidate upset many people when he sent political spam that contained deceptive header information. If the email had contained commercial content, the CAN-SPAM Act would have prohibited it. Because the email urged the recipients to vote, however, this spam did not violate the Act. The email’s political content gave it immunity to any challenge based on the recipients’ privacy interests. By establishing basic guidelines for unsolicited political communications, it is possible for Congress to ensure that such communications are only used to positively help increase political participation, rather than irritate people (Arora, 2006).
Considering the fact that most consumers view Internet services as being critical to daily existence, majority have apparently grown more tolerant of spam, having come to view it more as an acceptable nuisance rather than a cause for abandoning email. A report by the Pew Internet & American Life Project found that fewer consumers were annoyed with spam unlike in the past years. After the Act became effective, the percentage of consumers annoyed with spam dropped even further and went down to 67 percent from 77 percent previously. The decrease is a positive trend attributable to the reduction in the amount of spam entering consumers’ inboxes.
Another development is that the CAN-SPAM Act has established a framework for lawful commercial email, and as a result, legitimate marketers are largely complying with it. Most marketers would provide recipients with both notice of their right to choose not to receive future commercial emails and with a mechanism to enable consumers to exercise that right.
Consumer Protection
When the CAN-SPAM Act was passed, it was apparent to Congress that quite a number of commercial emails had material that was unacceptable to recipients because of they contained sexually explicit material. This clearly indicated that consumers were unhappy with pornographic or obscene content in email messages. Prior to CAN-SPAM’s enactment, a report issued by Pew in October 2003 found that 53 percent of computer users considered pornographic email to be the most offensive of the email they receive (Majoras et al., 2005). Two years later, the amount of pornographic emails received by consumers significantly decreased since the enactment of the CAN-SPAM Act. In 2005, Pew reported that the number of users who were receiving pornographic spam had declined from 71 percent to 63 percent over the previous year. In July 2005, Clearswift, an Internet security company, reported that pornographic email accounted for only five percent of spam that the company analyzed that month. This represents almost a quarter of the amount that had been reported in the year 2003. One major ISP observed a similar trend, and reported that sexually oriented emails accounted for only six percent of email it received in January and February 2005, as compared to 23 percent for the same two month period in 2004. While the decline in pornographic emails cannot be directly attributed to any single development, it is in order to imagine that law enforcement actions have contributed to the decline (Majoras et al., 2005).
The CAN-SPAM Act provides consumers with two useful protections as far as unwanted pornographic emails are concerned. First, the required subject line label alerts recipients that the emails contain sexually explicit content, making it easier for recipients to filter out those types of messages. Secondly, if consumers open such messages by mistake, they are protected from being exposed to sexually explicit content because the Act specifically prohibits such content from appearing in the portion of the email the recipient initially sees when the message is opened. This offers consumers a second layer of protection from unconscious exposure to pornographic or obscene commercial emails. Accordingly, this has led to a great decline of pornographic spam.
There are also major concerns about the impact of the Act on children with email accounts. According to a study conducted by Symantec Corporation, 76 percent of children who use the Internet have and use one or more email accounts. These email accounts are often bombarded with spam advertising reduced mortgages, online dating services, weight loss products and pharmaceutical products. Most disturbingly, 47 percent of the children surveyed received spam with links to pornographic sites. It is therefore critical to reinforce the Act to protect the future of these children.
Conclusion
Since the enactment of the CAN-SPAM Act, the email landscape has improved with regard to consumer protection and exposure to pornographic spam among others. As can be seen from the statistics given here, there is an obvious decline in the amount of such spam that is being sent, and consumers agreeing that the amount of spam coming to their inboxes were on the decline. Despite these improvements, there is need for continued vigilance to ensure that consumers, especially children, are protected from all sorts of spam.
Generally, the CAN-SPAM Act has been effective in providing a roadmap for legitimate marketers to use in crafting their email campaigns. Apparently, the compliance by legitimate online marketers has been quite encouraging as many are able to do so. Consumers and businesses have also greatly benefited from having a set of best practices, articulated within the Act, adopted by legitimate email senders. The Act has also increased the ease or efficiency of enforcement against spammers.
However, while trends indicate a decrease in the amount of spam reaching consumers’ inboxes, spam is on the other hand increasingly becoming a tool for identity theft and for the delivery of viruses and other forms of malware, such as spyware. For the practicality and effectiveness of the CAN-SPAM Act, it is necessary to pay attention to the enforcement of the law and to take advantage of any avenues that are available to ensure effectiveness such as technological advancements.
Although it is true that most consumers will ignore the effect of spam and continue to use the Internet for ecommerce services, it is very important to create an environment that will guarantee consumers of uncompromised quality of services so as to regain their confidence as far as using Internet services are concerned. By so doing, the economy will also benefit and many people will be happier.
References
Arora, V. (2006). The CAN-SPAM Act: An Inadequate Attempt to Deal with a Growing Problem. Columbia Journal of Law and Social Problems, 39: 299 – 330.
Federal Trade Commission (FTC). (2004). The CAN-SPAM Act of 2003: National Do Not Email Registy: A Federal Trade Commission Report to Congress. Darby, PA: Diane Publishing.
Majoras, D. P., Leary, T. B., Harbour, P. J. & Leibowitz, J. (2005). Effectiveness and Enforcement of the CAN-SPAM Act: A Report to Congress. Washington, DC: Federal Trade Commission.