This post about email harvesting being a violation of CAN-SPAM is based on an answer to a Quora question that I provided. (Please see Is email harvesting illegal? )
Definitions: Email Harvesting and CAN-SPAM
Email harvesting is the process by which lists of email addresses are gathered for use in bulk emailing (spam).
CAN-SPAM is U.S. federal legislation that aims to make commercial email (including commercial content on websites) more truthful, more transparent and more avoidable. (See all posts about CAN-SPAM .)
Relevance of Email Harvesting to CAN-SPAM
Under CAN-SPAM, email harvesting (15 USC Section 7704(b)(1)) is relevant in two ways:
- Service providers can seek increased statutory damages from spammers who use harvested addresses. (15 USC Section 7706(g)(3))
- Use of harvested addresses can result in enhancement of criminal penalties. (15 USC Section 7703(b)(2)(A))
No one in the U.S. should be sending spam email. But if you send spam, you definitely should not send it to lists that result from email harvesting.
Updated November 12, 2015
Many of us probably have an intuitive idea of what constitutes email harvesting. As it happens, CAN-SPAM (17 USC Section 7704(b)(1)(A)(i)) states that email harvesting occurs if:
[T]he electronic mail address of the recipient was obtained using an automated means from an Internet website or proprietary online service operated by another person, and such website or online service included, at the time the address was obtained, a notice stating that the operator of such website or online service will not give, sell, or otherwise transfer addresses maintained by such website or online service to any other party for the purposes of initiating, or enabling others to initiate, electronic mail messages[.]
The most interesting aspect of this definition is that email harvesting occurs only if the operator of the site or service from which email addresses are taken expressly states that it will not provide such addresses to third parties for the purpose of sending email to those addresses.
Dana H. Shultz, Attorney at Law +1 510-547-0545 dana [at] danashultz [dot] com
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact a lawyer directly.