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COMPUTER CRIME

15 U.S.C. § 7704 (2005)
Another component of the CAN-SPAM Act is 15 U.S.C. § 7704 (2005). It makes it a crime for a person

  • initiate the 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. 15 U.S.C. § 7704(a)(1).

For purposes of this paragraph--

  • header information that 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 shall be considered materially misleading; Id. § 7704(a)(1)(A)
  • a "from" line (the line identifying or purporting to identify a person initiating the message) that accurately identifies any person who initiated the message shall not be considered materially false or materially misleading; Id. § 7704(a)(1)(B); and
  • header information shall be considered materially misleading if it 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. Id. § 7704(a)(1)(C).

Section 7704 also makes it a crime for a person

  • to initiate the transmission to a protected computer of a commercial electronic mail message if
    • such person has 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 (consistent with the criteria used in enforcement of section 5 of the Federal Trade Commission Act (15 U.S.C. § 45)). Id. § 7704(a)(2).

It is also a crime for a person to

  • initiate the transmission to a protected computer of a commercial electronic mail message that does not contain a functioning return electronic mail address or other Internet-based mechanism, clearly and conspicuously displayed, that--
    • a recipient may use to submit, in a manner specified in the message, a reply electronic mail message or other form of Internet-based communication requesting not to receive future commercial electronic mail messages from that sender at the electronic mail address where the message was received; and
      • remains capable of receiving such messages or communications for no less than 30 days after the transmission of the original message. Id. § 7704(a)(3)(A).

    If a recipient makes a request using a mechanism provided pursuant to paragraph (3) not to receive some or any commercial electronic mail messages from such sender, then it is unlawful--

    • for the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message that falls within the scope of the request; Id. § 7704(a)(4)(A)(i)
    • for any person acting on behalf of the sender to initiate the transmission to the recipient, more than 10 business days after the receipt of such request, of a commercial electronic mail message with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that such message falls within the scope of the request; Id. § 7704(a)(4)(A)(ii)
    • for any person acting on behalf of the sender to assist in initiating the transmission to the recipient, through the provision or selection of addresses to which the message will be sent, of a commercial electronic mail message with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that such message would violate clause (i) or (ii); Id. § 7704(a)(4)(A)(iii) or
    • for the sender, or any other person who knows that the recipient has made such a request, to sell, lease, exchange, or otherwise transfer or release the electronic mail address of the recipient (including through any transaction or other transfer involving mailing lists bearing the electronic mail address of the recipient) for any purpose other than compliance with this Act or other provision of law. Id. § 7704(a)(4)(A)(iv).

    It is a crime for a person to initiate the transmission of any commercial electronic mail message to a protected computer unless the message provides--

    • clear and conspicuous identification that the message is an advertisement or solicitation;
    • clear and conspicuous notice of the opportunity to decline to receive further commercial electronic mail messages from the sender; and
    • a valid physical postal address of the sender. Id § 7704(a)(5)(A)

    Furthermore, no person may initiate in or affecting interstate commerce the transmission, to a protected computer, of any commercial electronic mail message that includes sexually oriented material and--

    • fail to include in subject heading for the electronic mail message the marks or notices prescribed by the Commission under this subsection; Id. § 7704(b)(1)(A); or
    • fail to provide that the matter in the message that is initially viewable to the recipient, when the message is opened by any recipient and absent any further actions by the recipient, includes only--
      • to the extent required or authorized pursuant to paragraph (2), any such marks or notices; Id. § 7704(d)(1)(B)(i);
      • the information required to be included in the message pursuant to subsection (a)(5); Id. § 7704(d)(1)(B)(ii); and
      • instructions on how to access, or a mechanism to access, the sexually oriented material. Id. § 7704(d)(1)(B)(iii)

    The Punishment
    The punishment for a violation of section 7704(d)(1) is a fine, imprisonment for up to five years, or both.

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