Quick Index
 Adult Industry News
Search AINews Database
Type Keyword or Phrase Here
EXPO 2015, August 23-26, New Orleans

Front Page
Film News
Media News
Business News
Clubs & Appearances
Law & Politics
Internet & Mobile News
Lifestyles Arts Health Charity
Letters to the Editor
Movie Spotlight Reviews
Pornstar Pages
AINews Staff
Ad Rates
PR 101: Press Release Service

Caliente Swinger Vacations!

Brea Bennett at Twistys

May 21, 2004 06:00am
Can you Spam Under the CAN-SPAM Act?
Source: Weston, Garrou & DeWitt
by: Lawrence G. Walters, Esq. & Heather R. Schwarz, Esq.

After years of trying to pass uniform spam regulations without success, the United States Congress finally passed the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM"), which requires email marketers, amongst other things, to accurately identify themselves and to provide an email opt-out. This article will briefly summarize the important features of the CAN-SPAM Act and examine the future of email marketing.

Federal CAN-SPAM Act

Effective January 1, 2004, all unsolicited emailed transmissions, commonly known as "spam," must comply with the CAN-SPAM Act. The CAN-SPAM Act does not completely ban unsolicited email, but imposes a list of requirements, including special requirements for adult-oriented spam. The requirements include, but are not limited to, prohibitions on deceptive messages, forged header information, false email sender accounts, and deceptive subject headings. The Act also requires what the FTC calls the "electronic plain brown paper wrapper" requirement that unsolicited emails contain a functioning return address that works for 30 days after the email transmission, that spammers refrain from transmitting unsolicited emails after users opt-out, that spam email contain the sender's valid physical address, that the email states it is a solicitation or an advertisement, and that certain sexually oriented email contains a "Sexually-Explicit" label.

Most importantly for the adult Internet industry, is the FTC's recently adopted controversial regulation requiring adult oriented spam emails to contain a label on the subject line and in the body designating the correspondence as "Sexually-Explicit," to ensure that it is easily identifiable by filters. Sexually explicit language may not appear in the subject line and nothing except specified information can be included in the body of the emails, however, hyperlinks or other devices providing access to materials is permitted.

Constitutional scholars are dubious as to whether such forced labeling could survive a First Amendment challenge. The Center for Democracy and Technology says that the labeling may amount to 'forced speech' which has been deemed unconstitutional in some instances. Moreover, the required label is, in some ways, illogical. On the one hand, the FTC requires that adult oriented emails be labeled "Sexually-Explicit" while at the same time, any sexually explicit content is prohibited. In light of the substantial reliance by the adult industry on email marketing, legal challenges to the Act are a virtual certainty.

The practical effects of these new regulations on the industry have yet to be seen, given the newness of the legislation. Only a few violators have been prosecuted thus far. In late April 2004, federal authorities charged four individuals in Detroit with violating the Act by fraudulently promoting weight loss products. They were charged with hiding their identities in hundreds of thousands of emails, and using relay computers to deliver their messages. According to the physician consulted by investigators, the ingredients in the product did not work. The case is still pending, and therefore no judgments have been obtained under the CAN-SPAM Act yet.

Webmasters should take note of the fact that they may be liable for the illegal actions of their affiliate promoters, under the Act, if the affiliates had proper authorization from the webmasters to send mass emails on their behalf. This is by far the most controversial and far-reaching prohibition of the new legislation. Webmasters must now exercise more oversight over their affiliates' promotional activities. At the very least, all webmasters should now adopt a contractual "Spam Policy" governing any email promotion, which complies with the new legislation. Such documentation could assist in demonstrating that the webmaster did not consent to any illegal spam promotions by affiliates; perhaps assisting in the defense of any charges brought under the Act.


The CAN-SPAM Act imposes various penalties on businesses that do not comply with its provisions. Statutory damages can range from $250 up to $2 million per violation, with aggravated damages in the amount of three times statutory damages. Reduction of damages may be allowed under mitigating circumstances, and reasonable attorney's fees are available to offset the costs of prosecution. Under the Act, primary enforcement authority was delegated to the FTC, although state's attorneys general can also initiate enforcement actions. Although no general private right of action is allowed, certain Internet access providers that have been damaged by violations of the Act can seek damages and reasonable attorney's fees. However, enforcement of the Act may pose practical difficulties since spammers may be located offshore and email addresses may not always be easily traced.


In an unusual joint effort, some of the United States' largest Internet Service Providers are teaming up to file lawsuits in California, Georgia, Virginia and Washington state against hundreds of people who have been accused of violating the CAN-SPAM Act by sending millions of unwanted emails. Much like what the Recording Industry Association of America did to combat song swapping, Microsoft, America Online, Earthlink and Yahoo! are targeting mostly anonymous "John Doe" defendants who sent out unsolicited emails. They are seeking injunctions to stop spammers and force them to pay damages. The Internet Service Providers plan on working together to initiate future lawsuits.

Future of Spam?

Since its adoption in January of this year, the Act has yet to meaningfully reduce the amount of spam being sent to users' inboxes. Since much spam originates from overseas, outside the jurisdiction of the United States, the Act will not immediately impact foreign email promoters. According to Brightmail, a spam filtering company, the volume of spam has actually grown continuously since the Act took effect, with spam taking up as much as 60 percent of emails in January, up from the 58 percent in December. Additionally, a survey conducted by the Pew Internet & American Life Project in February, 2004, revealed that 29 percent of people using email have reduced their email use due to the spam in their inboxes. The survey also showed that spam is not shrinking, but rather it is a growing problem.

The public has made it clear that it is fed up with spam, and it wants the government to do something about it. The CAN-SPAM Act is here to stay and all webmasters and advertisers who disseminate bulk email must comply and develop a legal strategy to avoid the Act's stiff penalties and potential injunctions. By implementing a "Spam Policy," paying attention to the provisions of the Act, and speaking with a lawyer, you can minimize your legal risks as enforcement actions under the CAN-SPAM Act become more common.

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, FirstAmendment.com or AOL Screen Name: "Webattorney."

Lawrence G. Walters, Esq. & Heather R. Schwarz, Esq.
Weston, Garrou & DeWitt

Related Stories

Related Sites - WARNING! Graphic Content

Casey Cumz 02

See BiBi Jones at Digital Playground

Top Stories

Modern Comstockery

Nikki Phoenix Appearance

Rock’N’SeXXXy Welcomes Billy Blair

Karaoke XXX Needs New Location

Jane & Ward Hosting XRCO

SashaBrabuster's XXX Comeback

Control ~ Reviewer Rated

XRCO 2015 Nominees

A Leaner Message

MWA: 02/26/15

50 Shades of Grey ~ Cinema Seen

XRCO 2015 Hall of Fame

Interview with Ela Darling

Derrick Pierce Interview

The News Rack: Naked Swingers

MWA: 02/07/15

Interview of Holly Heart

ED Expo to Big Easy

Hof on Phoenix Hooker Bust

I Know You

Cal/OSHA vs Evil Angel

Layla Price at Foxxx Booth

Star.XXX Blasts Off

Puma Swede on Jukeboxx Live

MWA: 01/11/15

MWA: 01/19/15

Nikki Phoenix Party

Viva Las Vicki

Freedom Acres Open House

Kendra Lust in Detroit

MWA: 01/10/15

MWA: 01/03/15

Starr Sisters in Houston

MWA: 01/02/15

MWA: 01/01/15

Nikki Phoenix Update

MWA: 10th Anniversary Column

MWA: 12/30/14

Vegas Heat Party

MWA: 12/27/14

XBIZ Rooftop Party

MWA: 12/26/14

Welcome 2015!

Canadian Foot Porn

Actress as an Artist

MWA: 12/14/14

Pushed Into the Corner

Tod Hunter Press Releases

Global Adult Industry Association

Pornography Feminism

Merry XXXmas, Happy Xanukkah

Rock'N'Sexxxy 12/10/2014

MWA: 12/05/14

Karlie Montana Interview

Deep Vision ThunderRama

Hackin Jack vs Chainsaw Chick

BBW Eliza Allure Interview

MWA: 11/20/14

Tara Lynn Foxx Retires

Treacherous ~ Reviewer Rated

Bright Lights, Lonely Nights

Taormino Speaks at Goucher

Cumisha Amado at Sagebrush

Vivid Radio 1st Anniversary

The Gardener ~ Reviewer Rated

BoodiGo: Privacy & Porn

Shades of Scarlet ~ Reviewer Rated

AINews: Skow Among Best

Heaven & Hell Halloween Party

These Things We Do ~ Reviewer Rated

Farrah Abraham at Hustler Hollywood

Sex Workshop Hustler San Diego

Halloween Art Show

O Awards Pre-Noms Open

Trophy Girl Casting Call

Cum in Me Baby 4 ~ Reviewer Rated

More Phoenix Mainstream

BoodiGo Partners PornGuardian

BoodiGo Supports ASACP

BoodiGo Blocks Child Porn

Boodigo Adult Search Engine

AVN Show Discounts End Today

Inside The Industry 10/08/2014

Amber Lynn at Wasteland

Nikki's Fit as Phoenix

Vivid Extends Patrick Hosting

Fake Test Results

Angelyne on Amber Lynn's RNSU

Red Cardinal Wraps Betrothed

Siri Wins Round 2

J.Lo Doc Johnson Offer

Stripclub Microbrewery on CNN

Father's Day ~ Reviewer Rated

Our Father ~ Reviewer Rated

Nikki Phoenix Album Released

Passport to Hustler Event

Fox News Wasteland

Asianmodelpalooza 14

Nikki Phoenix Appearances

Nikki Phoenix Karaoke XXX

Nina Elle Retains Star Factory

Tasha Reign Grads UCLA

Tera Patrick Hosts Vivid Radio

It's Just Work

Traci Bryant Goes Legal

CET Free Panel Month

Miss LA Karaoke XXX

Freedom Acres Location

Summer Lovers

Nikki Delano at Centerfolds

Karen Summer Returns

Advertise on AINews

Cytherea Auctions Fan Scene

Entertainment is Entertainment is Entertainment

Stories From

Law & Politics

Modern Comstockery

Hof on Phoenix Hooker Bust

Cal/OSHA vs Evil Angel

Pornstar Graduates Law School

AHF Against AB 999

CraigsErotica Letter to Senators

Amazon Crushes Small Business

Letter of Equality

ASACP Service Recognition Award

Suit Filed Challenging Measure B

ASACP Ready For Internext

Octomom Loses Civil Suit


Crakmedia ASACP Corporate Sponsor

Mo Reese Statement

CAM4 Newest ASACP Sponsor

Mo Reese FSC Nom

Amber Lynn Seeks FSC Board

Suit Against Measure B

Law Puts Con in Condom

No on B: Here's Why

NO on B Campaign

NO on B Bus Tour

GFY: Vote No on B

Margold on Erection Election

Alex Chance in Documentary

Yahshua: No On B

No On 35 Rally

Why No On B

Measure B Threatens Freedom

Measure B Protest Video

No On B Raffle

Alia Janine: No On B

AHF Vilifies Porn

No on B Event

Alia Janine Against Measure B

Fight Measure B

Takedown Piracy Removes 10,000,000

John Stagliano Keynotes CatalystCon

Hirsch Blasts Trueman

Hirsch Cautions GOP

LATATA Files Injunction

Child Porn Hotline Increased

Vette Scores on AFF

Nicole Houde Assault Arrest

YouJizz Sued

Dickinson Defends Travolta

Kardashian/Humphries Divorce Deposition

Three Stooges Porn Controversy

Suing: Wasn't Sexy Enough

Lords of Acid Censored

Nate Glass on CNBC

Law & Politics Section Index

Copyright © 1998 - 2015 Adult Industry News (AINews.com)
All materials constituting text, articles, press releases, stories, columns, photographs, graphics, and code on the AINews.com domain are protected by copyright, and either owned by Adult Industry News (AINews.com), or reproduced with permission from other copyright owners. It may be downloaded and printed for personal reference, but not otherwise copied, altered in any way, or transmitted to others, without the written permission of Adult Industry News (AINews.com).