Unsolicited E-mail (spam)
Updated: November 3, 2003
Due to concerns about the burdens that unsolicited commercial e-mail,
or spam, places on recipients and on Internet Service Providers,
over thirty states have enacted legislation attempting to regulate
Proponents of regulation have sought to enact a wide range of measures
- Require all commercial e-mail to include an "opt-out"
- Prohibit false headers and misleading subject lines;
- Require unsolicited commercial e-mail to include standard identifying
labels in the subject line; and
- Allow Internet service providers to sue those who violate their
posted policies against spam.
Some state legislation that seeks to prohibit spam has been invalidated
by federal courts because of Constitutional issues involving free
speech and the regulation of interstate commerce.
Because of the confusion created by different state
laws and because of Constitutional problems associated with prohibiting
spam at the state level, S.877, the ”CAN-SPAM Act” was
passed by the US Senate in October of this year.
- require accurate return addresses on unsolicited e-mail;
- make it illegal to send unsolicited e-mail to individuals who
opt-out of mailing lists; make it illegal to harvest e-mail addresses
from Internet registrars;
- require messages to identify their commercial nature;
- allow ISPs, Federal agencies and state attorney generals the
right to sue violators of the proposed law
- pre-empt the states from enacting their own spam laws.
During the last Congress, the House of Representatives passed
similar legislation, but the measure died in the Senate, due to
concerns raised by the financial services industry over proposals
that would mandate an "opt in" policy on commercial
e-mail, establish a right for consumers to sue parties who send
unsolicited commercial e-mail, and allow states to enact tougher
The Direct Marketing Association has launched an EMail Preference
Service to help consumers reduce unsolicited commercial emails.
To "opt-out" of receiving unsolicited commercial email,
consumers may use the Direct Marketing Association's online form
Online requests will remain effective for one year.
Software Council Position:
Electronic mail is an essential marketing tool for legitimate companies in
this world of e-commerce and the Internet.
Companies and non-profit organizations sending emails that (1) do not use false
transmission or routing information; (2) do not include false information in
the subject line; and (3) provide a clear and conspicuous method to allow
recipients to opt-out of receiving further messages should be allowed to
prospect for new customers without being required to use "ADV" in the
subject line of their messages.
organizations will be deprived of the opportunity to grow their businesses by
using email to prospect for new customers.
Looking forward, the Council believes that spam should be addressed in the
context of updating
' computer crime law, similar to legislation enacted by Virginia
in April of this year. The Virginia
legislation, imposes criminal penalties on individuals who intentionally use
false email headers or information in email subject lines, or who mask the
transmission of their messages.
Internet Service Providers (ISPs) should be encouraged to work with
Email Service Providers (ESPs) to develop technology-based solutions
to the problems created by spam.
The regulation of spam should be addressed at the federal level.
Any federal legislation should be benchmarked against the following principles,
which have widespread industry support:
Software Council Activity:
- Prohibit the use of an Internet address or domain name of a
third party without their consent.
- Prohibit email containing false or misleading addresses and
subjects, or false or missing routing information.
- Prohibit the sale or distribution of software that is designed
to falsify electronic mail transmissions or other routing information.
- Require messages to contain a provision allowing the recipient
to opt-out of receiving further messages.
- Pre-empt state legislation.
On September 25, the Massachusetts Senate approved a bill
sponsored by Attorney General Tom Reilly regulating commercial
electronic mail. The bill requires Massachusetts businesses to place
an "ADV" at the beginning of the subject line of
unsolicited commercial email that it sends to all recipients
The Software Council has opposed this measure, because it will
make it impossible for entrepreneurs based in Massachusetts to grow
their businesses by using email to prospect for new customers.
The Council will be working with the leadership of the
Massachusetts House of Representatives to address spam in the
context of updating Massachusetts' computer crime law, similar to
legislation enacted by Virginia in April of this year. The Virginia
legislation imposes criminal penalties on individuals who
intentionally use false email headers or information in email
subject lines, or who mask the transmission of their messages.