The Failure of CAN-SPAM

The "Controlling the Assault of Non-Solicited Pornography and Marketing" Act of 2003 (CAN-SPAM) was widely publicized and highly approved when it became affective on January 1, 2004.  Yet, today SPAM makes up 88% of all incoming email and it is estimated that American workers spend a total of ten working days per year dealing with unwanted emails.  The cost of SPAM, in terms of lost productivity and network maintenance is estimated to be 50 billion dollars a year,17 billion in the United States.  SPAM has increased more than 20% since the passage of CAN-SPAM. 

CAN-SPAM empowers the Federal Trade Commission to enforce it's provisions, and creates a cause of action for Internet Service Providers (ISPs), but not individual SPAM receivers.  Microsoft  has filed suit gainst seven spammers alleging failure to label sexually explicit content in violation of the act's "brown paper bag provision."  AOL, YAHOO!, and Earthlink have tried similar approaches in addition to bringing claims under state law.  Verdicts against prolific spammers have reached as high as 1 billion dollars.  Yet spammers, who work in an industry where the cost of production is virtually zero and receive 25-50% commissions on any sales of products marketed through SPAM may be taking a "law and economics" approach to CAN-SPAM.  Is it a situation where as long as the profits significantly outweigh the costs the risk remains worth taking?

Other possible explanations for the continuing proliferation of SPAM are that CAN-SPAM is essentially  toothless.  SPAM remains legal under the act, and rather than enact an "opt-in" requirement similar to the European and Australian Anti-Spam Laws, Congress chose the "opt-out" approach placing the burden on the individual to let each spammer know that future messages are unwelcome.  Meanwhile, the FTC has filed only two CAN-SPAM claims against alleged spammers, claiming they are next to impossible to identify.  Thus far, the FTC is not using the provisions of the act which empower it to bring claims against companies employing Spammers.  While pithy commentators are calling CAN-SPAM the "Permission-to-Spam" Act,  Senators are divided on the potential efficacy of the act.