In the spring of 2003, Anne was contacted by Senator John McCain’s office about helping to author an amendment to the upcoming Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003. Senator McCain and his staffers were concerned about vendors who used affiliates to sell their products and services, and who turned a blind eye when those affiliates promoted their products and services through spam. Senator McCain wanted to close that loophole, and his office turned to Anne for help drafting the amendment.
Here is the text that resulted, which is now Federal law.
SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAIL WITH FALSE OR MISLEADING TRANSMISSION INFORMATION.
(a) IN GENERAL.—It is unlawful for a person to promote, or allow the promotion of, that person’s trade or business, or goods, products, property, or services sold, offered for sale, leased or offered for lease, or otherwise made available through that trade or busi- ness, in a commercial electronic mail message the transmission of which is in violation of section 5(a)(1) if that person—
(1) knows, or should have known in the ordinary course of that person’s trade or business, that the goods, products, property, or services sold, offered for sale, leased or offered for lease, or otherwise made available through that trade or business were being promoted in such a message;
(2) received or expected to receive an economic benefit from such promotion; and
(3) took no reasonable action—
(A) to prevent the transmission; or
(B) to detect the transmission and report it to the
Commission.
(b) LIMITED ENFORCEMENT AGAINST THIRD PARTIES.—
(1) IN GENERAL.—Except as provided in paragraph (2), a person (hereinafter referred to as the ‘‘third party’’) that pro- vides goods, products, property, or services to another person that violates subsection (a) shall not be held liable for such violation.
(2) EXCEPTION.—Liability for a violation of subsection (a) shall be imputed to a third party that provides goods, products, property, or services to another person that violates subsection (a) if that third party—
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(A) owns, or has a greater than 50 percent ownership or economic interest in, the trade or business of the person that violated subsection (a); or
(B)(i) has actual knowledge that goods, products, prop- erty, or services are promoted in a commercial electronic mail message the transmission of which is in violation of section 5(a)(1); and
(ii) receives, or expects to receive, an economic benefit from such promotion.
(c) EXCLUSIVE ENFORCEMENT BY FTC.—Subsections (f) and (g) of section 7 do not apply to violations of this section.
(d) SAVINGS PROVISION.—Except as provided in section 7(f)(8), nothing in this section may be construed to limit or prevent any action that may be taken under this Act with respect to any viola- tion of any other section of this Act.