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CAN-SPAM
Enforcement
SPAM
Definitions
Patent
Updates
What is it?
Who
enforces it?
First Spam
Ever?
Commercial
Email?
Licensing
What does
it do?
How mean
are they?
Commercial
Spam?
T or R
Messages?
Software
Exports
What does
it require?
What are
their tactics?
Non-Email
Spam?
Header
Information?
Challenging
Patents
What are the
penalties?
How to
avoid?
What about
porn?
Sender?
Patent
Trolls
California
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differences?
What about
non-email?
Do not email
registry?
Initiate?
Patent
Reform
The CAN-SPAM Act
Controlling the Assualt of NonSolicited Pornography And Marketing
Act
(requirements for commercial emailers)
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Who Enforces?
•
•
•
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Federal Trade Commission
States
Internet Service Providers
First Spam Ever
When was it sent?
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Commercial Email
• (A) IN GENERAL- The term `commercial
electronic mail message' means any electronic
mail message the primary purpose of which is the
commercial advertisement or promotion of a
commercial product or service (including content
on an Internet website operated for a commercial
purpose).
• (B) TRANSACTIONAL OR RELATIONSHIP
MESSAGES- The term `commercial electronic
mail message' does not include a transactional or
relationship message.
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Supreme Court:
•Licensees under patents now have
standing to sue the patent owner for noninfringement or invalidity.
MedImmune v. Genentech
Federal Circuit:
•Invitation to license letters, formally the
standard opening volley of a license
negotiation now give rise to the ability for
the recipient to file a DJ action .
Teva Pharmaceutical v. Novartis
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The CAN-SPAM Act
(1) Establishes requirements for
commercial emailers
(2) Spells out penalties for spammers
and companies who advertise in
spam if they violate the law
(3) Gives consumers the right to ask
emailers to stop spamming them
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Criminal Convictions
•In January, 2006 a California man was convicted
by a jury in United States District Court in Los
Angeles in United States v. Goodin, U.S. District
Court, Central District of California, 06-110,
under the CAN-SPAM Act (the first conviction
under the Act)
•Concluding the first prosecution of its kind in the
United States, a California man was sentenced to
nearly five years in prison for profiting from his
use of "botnets" == armies of compromised
computers == that he used to launch destructive
attacks, to send huge quantities of spam across the
Internet and to receive surreptitious installations of
adware.
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First Commercial Spam
Sent by what type of business?
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T or R Messages
(A)IN GENERAL- The term `transactional or relationship message'
means an electronic mail message the primary purpose of which
is—
(i) to facilitate, complete, or confirm a commercial transaction that
the recipient has previously agreed to enter into with the sender;
(ii) to provide warranty information, product recall information, or
safety or security information with respect to a commercial
product or service used or purchased by the recipient;
(iii) to provide-(I) notification concerning a change in the terms or features of;
(II) notification of a change in the recipient's standing or status with
respect to; or
(III) at regular periodic intervals, account balance information or other
type of account statement with respect to, a subscription,
membership, account, loan, or comparable ongoing commercial
relationship involving the ongoing purchase or use by the recipient
of products or services offered by the sender;
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(iv) to provide information directly related to an employment
relationship or related benefit plan in which the recipient is
currently involved, participating, or enrolled; or
(v) to deliver goods or services, including product updates or
upgrades, that the recipient is entitled to receive under the terms
of a transaction that the recipient has previously agreed to enter
into with the sender.
Supreme Court:
•Software components are not considered a
material component of a patented device
under the export prohibition of 35 USC
Section 271(f)
Microsoft v. AT&T
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What the Law Requires
It bans false or misleading header information. Your email's "From,"
"To," and routing information – including the originating domain name
and email address – must be accurate and identify the person who
initiated the email.
It prohibits deceptive subject lines. The subject line cannot mislead
the recipient about the contents or subject matter of the message.
It requires that your email give recipients an opt-out method. You
must provide a return email address or another Internet-based response
mechanism that allows a recipient to opt-out, and you must honor the
requests.
It requires that commercial email be identified as an advertisement
and include the sender's valid physical postal address. Your message
must contain clear and conspicuous notice that the message is an
advertisement or solicitation and that the recipient can opt out of
receiving more commercial email from you. It also must include your
valid physical postal address.
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FTC Tactics
•The FTC typically starts investigating after it
receives a number of complaints from consumers
•The FTC may spend months working in secret on
a file
•When ready, the FTC will file a complaint and an
application for TRO, under seal. The TRO will
usually order an asset freeze.
•The target does not know until it gets served,
which is too late.
•The FTC will then fight tooth and nail with their
endless resources. It's not pleasant.
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Commercial Emails Only
•Under the Act, only commercial
emails are prohibited.
•Other types of intrusive commercial
communications (e.g., text messages
on cell phones) might be subject to
Section 5 enforcement.
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Header Information
(8) HEADER INFORMATION- The term
`header information' means the source,
destination, and routing information
attached to an electronic mail message,
including the originating domain name and
originating electronic mail address, and any
other information that appears in the line
identifying, or purporting to identify, a
person initiating the message.
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Supreme Court:
•The well established standard for
demonstrating that a patent is obvious has
now been watered down
KSR v. Teleflex
•Good for reexaminations and patent
defense
•Bad for patent enforcement
•With the lower obviousness standard,
patent reexaminations will be on the rise.
•The NTP patents (Blackberry case) were
ultimately invalidated after the case was
settled
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What are the Penalties?
Penalties
•Each violation is subject to fines of up to
$11,000.
•Each email is a separate violation.
•Deceptive commercial email also is
subject to laws banning false or misleading
advertising.
•Watch out for Section 5 enforcement!
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Avoiding Prosecution
•Honor requests for removal
–Any opt-out mechanism you offer must be able to
process opt-out requests for at least 30 days after you
send your commercial email
–When you receive an opt-out request, the law gives
you 10 business days to stop sending email to the
requestor's email address
–Do not sell or transfer the email addresses of people
who choose not to receive your email, even in the form
of a mailing list, unless you transfer the addresses so
another entity can comply with the law
•Use descriptive subject lines
–“SEXUALLY EXPLICIT”
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•Use correct email headers
•Be fair (Section 5)
Requirements for Sexual Content
WARNING LABELS ARE REQUIRED
ON COMMERCIAL ELECTRONIC
MAIL CONTAINING SEXUALLY
ORIENTED MATERIAL
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Sender
(16) SENDER(A) IN GENERAL- Except as provided in subparagraph (B),
the term `sender', when used with respect to a commercial
electronic mail message, means a person who initiates such a
message and whose product, service, or Internet web site is
advertised or promoted by the message.
(B) SEPARATE LINES OF BUSINESS OR DIVISIONS- If
an entity operates through separate lines of business or
divisions and holds itself out to the recipient throughout the
message as that particular line of business or division rather
than as the entity of which such line of business or division
is a part, then the line of business or the division shall be
treated as the sender of such message for purposes of this
Act.
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Supreme Court:
•Injunctive relief may not be
available for patent owners that are
not competing in the market
•Compulsory licenses may be the new
standard (needs clarification from the
Court)
E-Bay v. MerkExchange
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Why not California?
The most significant difference
between the superseded California
law and the CAN SPAM Act is the
opt-out versus opt-in requirements.
California required recipients to
opt-in while the CAN SPAM Act
requires the recipient to opt-out
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Section 5 of the FTC Act
•This section gives the FTC the very broad
authority to sue individuals and companies
for unfair business practices.
•They sued the provider of the pop-up
blocker under section 5
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What about the National do-not
email registry?
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Tuesday, June 15, 2004 1:00 PM PDT
WASHINGTON -- The Federal Trade
Commission will not immediately start a national
Do Not E-Mail list, despite a law passed last year
that calls for the agency to develop a plan for such
a list. A Do Not E-Mail list would likely be used
by spammers to send consumers more unwanted
commercial e-mail, FTC Chairman Timothy Muris
says.
The FTC, in a report to Congress on Tuesday,
instead advocates Internet service providers
continue to work on domain-level e-mail sender
authentication, technologies that would require email to come from the domain it says it's from.
Initiate
(9) INITIATE- The term `initiate', when
used with respect to a commercial
electronic mail message, means to originate
or transmit such message or to procure the
origination or transmission of such
message, but shall not include actions that
constitute routine conveyance of such
message. For purposes of this paragraph,
more than one person may be considered to
have initiated a message.
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Patent Reform Legislation
•Harmonization of laws (first to file)
•Caps on damages
•2007 is a very big year for patent law
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ACCA-SD
Privacy and Anti Spam
presented by:
Pattric J. Rawlins
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ACCA-SD: Privacy & Anti Spam
In an effort to control unsolicited commercial email, Congress
passed the CAN SPAM Act of 2003. Now, over three years later
spam is on the rise and the anti-spam industry is struggling to keep
up with the surge of unsolicited mail with an estimated 9 out of
every 10 e-mail messages being identified as unsolicited junk mail.
So, how are the anti-spam laws holding up and what steps are being
taken for enforcement?
This presentation will outline the differences between the earlier
California SPAM Act and the federal CAN SPAM Act that
superseded it. The presentation will also cover recent law
enforcement actions by the Federal Trade Commission (the agency
responsible for policing the Act) and the requirements for
legitimate commercial emailers to avoid an enforcement action by
the FTC.
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