QUESTION
We were recently cited by our regulator for violations of
CAN-SPAM. Specifically, the header of our email was considered to be
misleading. How do we determine when a header is violating the CAN-SPAM requirements?
ANSWER
CAN-SPAM is the acronym for Controlling the Assault of
Non-Solicited Pornography and Marketing Act of 2003. The Act governs the use of
commercial email as a marketing tool as well as other activities relating to
commercial email that is deemed to be abusive.
It is unlawful to initiate a transmission to a protected
computer of a commercial electronic mail message, or a transactional or
relationship message, that contains, or is accompanied by, header information
that is materially false or materially misleading.
Generally, a “protected computer” is a computer used in
interstate or foreign commerce or communication, including a computer located
outside the United States that is used in a manner that affects interstate or
foreign commerce or communication of the United States. [LVRC Holdings LLC v.
Brekka, 581 F.3d 1127, 1131 (9th Cir. Nev. 2009)] Gradually this definition has
been expanded to include all networked computers, inside the U.S. or outside. [Shurgard
Storage Centers, Inc. v. Safeguard Self Storage, Inc., 119 FSupp2d 1121 (WD
Wash 2000)] Briefly put, computers on the Internet are “protected computers.” [US
v. Fowler, Case No. 8:10-cr-65-T-24 AEP (MDFL Oct. 25, 2010)]
Header information is considered materially misleading if the
header:
1. Is
technically accurate but includes an originating electronic mail address,
domain name, or Internet Protocol address the access to which for purposes of
initiating the message was obtained by means of false or fraudulent pretenses
or representations; and,
2. Fails
to identify accurately a protected computer used to initiate the message
because the person initiating the message knowingly uses another protected
computer to relay or retransmit the message for purposes of disguising its
origin. [15 USC § 7704(a)(1)(A), (C)]
Furthermore, CAN-SPAM prohibits initiating a transmission of
a commercial electronic mail message to a protected computer if there is actual
knowledge, or knowledge fairly implied on the basis of objective circumstances,
that a subject heading of the message would be likely to mislead a recipient,
acting reasonably under the circumstances, about a material fact regarding the
contents or subject matter of the message. [15 USC § 7704(a)(2)]
Jonathan Foxx
President & Managing Director
Lenders Compliance Group
