Is Spam Illegal?

Does the law protect you against spam?

Adam Freedman
October 6, 2009


Today’s topic: Spam

But first, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community. 

Legal Lad Strikes it Rich!

I really appreciate all the interesting emails sent to legal@quickanddirtytips.com ---and I read them all.   But there’s one email in particular that I’m so excited about, I just have to share it. Ms. Belinda Tacey, who currently lives in London, needs to transfer $9.6 million to the US, and is looking for a trustworthy partner to help her effect the transaction. I’m honored to say that Belinda has selected me ---that’s right, me, Legal Lad -- to be her partner.   All I have to do is send her all my personal details and I will receive a specified percentage of the loot.

So looks like I’ll be able to retire very soon. But I figured I would do at least one more podcast -- and why not talk about anti-spam laws? After all, I’m afraid not everyone out there is as decent and trustworthy as my partner Belinda, so you need to protect yourself.

Is Spam Illegal?

Spam: it’s the bane of our inboxes, whether it’s a mortgage deal, a plea from a Nigerian Senator, or a very subtle pitch for “male enhancement” drugs. The more it comes, the angrier we get until we shake our fists and say: “There ought to be a law.” As it happens, there is a law. Quite a few, actually.

Back in 2003, Congress passed the infamous CAN SPAM Act, which stands for Controlling the Assault of Non-Solicited Pornography and Marketing. I say “infamous” because the law has been much criticized for being ineffective. Indeed, some critics have dubbed it the “yes, you CAN SPAM Act.” For example, the law was supposed to lead to the creation of a national do-not-spam registry similar to the do-not-call registry. In 2004, the Federal Trade Commission submitted a nifty report to Congress about creating such a registry and since then, there has been . . . silence.

Spam Laws

Be that as it may, CAN SPAM does provide some measure of relief, from “spam,” which is basically defined as unsolicited bulk email that is “commercial” in nature, in other words, it contains some sort of advertising for some product or service. Specifically, CAN SPAM:

  • Prohibits fraudulent and deceptive commercial emails;

  • Requires senders of bulk emails to allow recipients to opt out of receiving further messages; and

  • Requires that any spam containing sexually-oriented material contain the warning SEXUALLY EXPLICIT in the subject line.

In addition to CAN SPAM, most US states have laws prohibiting falsity or deception in bulk emails.   For example, such laws may prohibit:

  • Falsifying the origin of or routing information on email messages;

  • Using an Internet address of a third party without permission;

  • Including misleading information in the subject line of a bulk email; or

  • Selling software designed solely to falsify the origin of, or routing information on, bulk email messages.

Only Commercial Emails Are Prohibited

Like the federal CAN SPAM, these state laws target only commercial email messages. Under the First Amendment to the Constitution, the government has much greater latitude to regulate commercial speech than other kinds of speech. The only state to attempt to ban non-commercial spam was Virginia -- and that law was put to the test in 2004, when a Virginia jury convicted prolific spammer Jeremy Jaynes, who was found to have sent as many as 24,000 spam emails in a single day to America Online subscribers.

Under the First Amendment to the Constitution, the government has much greater latitude to regulate commercial speech than other kinds of speech.


Jaynes was sentenced to nine years in prison, but after various appeals, the Virginia Supreme Court overturned his conviction on the grounds that the Virginia law violated the First Amendment because it could potentially be used to punish religious, political, and other non-commercial speech. In March 2009, the US Supreme Court refused to disturb that ruling. And so, Mr. Jaynes was allowed to go free. Well, actually, he would have been allowed to go free, except that he was already serving time for federal securities crimes.

What Can You Do About Spam?


If you’re suffering from a lot of spam, or even if you’re suffering from Spamalot, you can report email abuses to the Federal Trade Commission or to state authorities. If you are a provider of Internet services, CAN SPAM allows you to bring your own lawsuit against spammers.

There’s just one problem.   All anti-spam laws only work against spammers within the jurisdiction of the state or federal government.   Unfortunately, much of the spam in your inbox probably came from China, South Korea, or other far away places. And that, I suppose, is the price of hooking up to something called the “worldwide” web.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.  Don’t forget to check out www.us.mensa.org for more information about Mensa Testing Day, October 17.

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