Regulatory Blind Spots: Why the CAN-SPAM Act Didn’t Fix Everything

Nearly two decades after the CAN-SPAM Act took effect on January 1, 2004, your inbox is still a battlefield. The law was sold as a way to “control the assault” of unsolicited marketing email. Instead, it largely normalized it.

This piece unpacks what CAN-SPAM actually does, why it was never designed to solve today’s abuse ecosystem, how marketers and bad actors route around it, and what a next-generation framework needs to look like.

1. Quick Refresher: What CAN-SPAM Actually Does

The CAN-SPAM Act (15 U.S.C. §§ 7701–7713) sets a federal baseline for commercial email in the U.S. Key requirements for “commercial” email include: Federal Trade Commission+1

No false or misleading header information (From, To, domain, IP).
No deceptive subject lines.
Clear and conspicuous identification that the message is an advertisement (with some nuance in practice).
Inclusion of a valid physical postal address.
A clear, functioning opt-out mechanism that:
- Must be honored within 10 business days.
- Cannot require anything more than an email address and simple preference action.
Prohibition of certain abusive tactics:
- Address harvesting, dictionary attacks, and automated account creation for spam.
- Relaying through unauthorized servers.

Enforcement is mainly through:

The FTC and other federal agencies.
State Attorneys General.
Providers of internet access services (ISPs).
Not ordinary individuals: there is no general private right of action for consumers (outside narrow scenarios like certain state laws or ISP suits).

The Act also preempts many state anti-spam laws, replacing a patchwork of stricter rules with a single federal floor.

On paper, that looks like order. In practice, it baked in several blind spots.

2. Why It Looked Like a Fix (At the Time)

When enacted, CAN-SPAM addressed specific 2003-era concerns:

Gave regulators new tools and penalties against obviously fraudulent or pornographic spam. Federal Trade Commission
Created a uniform national standard, easing compliance for legitimate businesses.
Targeted technical abuse patterns (harvesting, relaying, spoofing) to support ISPs.

The problem: it regulated tactics of 2003, not the data ecosystem, cross-border reality, or incentive structures that now drive spam, dark patterns, and hyper-targeted outreach.

3. The Blind Spots Baked into CAN-SPAM

3.1 Opt-Out Instead of Opt-In

CAN-SPAM is fundamentally an opt-out regime:

You can email someone until they tell you to stop.
You don’t need prior consent to send most commercial emails.
Purchased or rented lists are not categorically banned, as long as you “comply” with CAN-SPAM formalities.

By contrast:

Canada’s CASL generally requires express consent and directly targets unauthorized commercial electronic messages. Fight Spam
In the EU, GDPR + ePrivacy rules push toward opt-in for most direct electronic marketing. EUR-Lex+1

Result: CAN-SPAM legitimized a high volume of “lawful but unwanted” email. It curbed some fraud; it didn’t prioritize user agency.

3.2 Narrow Scope of What Counts

CAN-SPAM focuses on messages whose “primary purpose” is commercial. That creates exploitable gaps: Federal Trade Commission+1

Transactional or relationship messages are largely exempt, even though they’re often used to smuggle in upsells.
Political, religious, and many nonprofit/advocacy emails fall outside core CAN-SPAM constraints.
Hybrid messages (content + promotion) are open to interpretation, giving room for lawyers to argue “not primarily commercial” while users experience them as marketing.

A modern influence ecosystem doesn’t respect that neat category line.

3.3 No Direct Consumer Enforcement

Ordinary users can’t sue a sender just for violating CAN-SPAM requirements.

Enforcement depends on agencies and ISPs prioritizing cases.
Given the sheer volume of violations, only a tiny fraction are pursued.

This weakens deterrence, especially for:

Aggressive lead generators.
Fly-by-night marketers.
Actors just below the “FTC headline case” threshold.

3.4 Cross-Border and Criminal Reality

CAN-SPAM presumes:

Identifiable senders,
Within reach of U.S. jurisdiction,
With assets and reputations to lose.

Much of today’s worst spam and phishing:

Originates overseas.
Uses botnets, fast-flux domains, crypto, and stolen infrastructure.
Laughs at formal compliance checklists.

These actors are functionally outside CAN-SPAM’s practical reach; they are instead tackled through broader criminal, fraud, and cybersecurity frameworks, not email-specific rules.

3.5 No Structural Fix for Spoofing & Authentication

The law doesn’t mandate modern authentication controls like SPF, DKIM, DMARC, or alignment.

Those safeguards emerged via industry standards, not statute.
Enforcement of brand or domain impersonation is reactive and piecemeal.

So:

Phishing and business email compromise (BEC) thrive in a world where technical identity guarantees are optional, and CAN-SPAM is largely irrelevant to the worst harms.

3.6 Silence on Data Brokerage and Surveillance Marketing

CAN-SPAM regulates messages, not the data supply chain behind them.

It does not:

Restrict how addresses are collected, profiled, cross-matched, or enriched.
Address data brokers, shadow profiles, or pervasive tracking that powers “legally compliant” cold outreach.
Integrate with modern privacy rights like those under the CCPA/CPRA, which tackle sale/sharing of personal data but are separate regimes. California DOJ Attorney General+1

Marketers can live in a comfortable gray zone: privacy-invasive data sourcing, followed by cosmetically CAN-SPAM-compliant sends.

3.7 Email-Only Thinking in an Omnichannel World

CAN-SPAM is about email.

But abuse and pressure have shifted to:

SMS and robocalls (governed mainly by the TCPA and state laws).
Messaging apps and DMs.
Push notifications.
In-app messaging and embedded prompts.

The result is a channel-by-channel patchwork, where sophisticated actors route around stricter rules and chase the weakest link.

3.8 Blind to Dark Patterns and Manipulative Design

CAN-SPAM doesn’t meaningfully address:

Dark-pattern unsubscribe flows,
Confusing consent language,
Pre-checked boxes,
Manipulative in-email design.

The FTC has only later, via separate actions and guidance, warned companies about illegal dark patterns and subscription traps. Federal Trade Commission+3Federal Trade Commission+3Federal Trade Commission+3
But those efforts sit next to, not inside, CAN-SPAM’s statutory framework.

4. How Actors Route Around CAN-SPAM (Legally and Illegally)

A few common moves:

Compliance Theater
- Slap on a postal address and an unsubscribe link.
- Use technically accurate but obscure sender domains.
- Claim list sources are “legitimate partners” without real consent trails.
Primary-Purpose Games
- Lead with quasi-editorial content, bury the sales pitch.
- Argue it’s “informational” to avoid stricter interpretations.
List Chaining & Data Laundering
- One entity gets “consent” in fine print.
- Multiple “partners” blast emails, each insisting they’re covered.
Cross-Channel Hopping
- As carriers and mailbox providers crack down, traffic shifts to SMS, messaging apps, or social ads via lookalike audiences—beyond CAN-SPAM’s direct scope.
Outright Criminal Spam
- Simply ignores the law.
- Relies on technical and jurisdictional barriers, not legal nuance.

CAN-SPAM didn’t anticipate (or regulate) the modern influence stack: identity brokers, ad tech, affiliate networks, AI-generated content, and cross-channel retargeting.

5. Enforcement Reality Check

The FTC and partners do bring CAN-SPAM actions—particularly for egregious fraud, deception, and pornographic spam. But: Federal Trade Commission+1

Enforcement is necessarily selective.
Resources skew toward clear-cut scams and cases with strong evidence and high consumer harm.
Routine gray-area marketing rarely meets that bar, even if it degrades trust at scale.

So the law’s signaling effect (“this is the standard”) ends up more important than its actual deterrent power for borderline actors.

6. New Threat Surface: AI, Personalization, and Synthetic Trust

The landscape CAN-SPAM governs has mutated:

AI-generated spam & phishing: Convincing, personalized at scale, cheap to produce.
Behavioral & contextual microtargeting: Built from cross-site tracking, data brokers, loyalty data, and inferred traits.
Deceptively formatted ads & native content: Blurred lines between editorial, influencer content, and marketing.

CAN-SPAM:

Says nothing about AI-generated content disclosure.
Doesn’t address profiling, inference, or data-driven targeting.
Only lightly touches disguising ads as content — and even there, regulators rely heavily on broader “unfair/deceptive” authority and separate policy statements, not the structure of CAN-SPAM itself. Federal Trade Commission

In other words: the most sophisticated manipulations are governed by general consumer protection and privacy laws, not the email-focused statute that was supposed to “control the assault.”

7. What a Modern Framework Should Look Like

If we treat CAN-SPAM as the floor, not the finish line, the “next steps” are less about clever tweaks and more about structural upgrades.

7.1 Shift Key Areas to Opt-In or Verified Consent

Particularly for:

Third-party list use,
High-volume prospecting,
Sensitive categories (health, finance, kids, political inference).

Borrow from CASL/GDPR-style consent:

Explicit.
Documented.
Freely given, granular, and revocable. Fight Spam+1

7.2 Mandate Strong Identity & Authentication

Bake into law what is now only best practice:

Require SPF, DKIM, DMARC with strict alignment for bulk senders.
Require accurate, traceable sender identities tied to real entities.
Penalize deliberate technical obfuscation and infrastructure laundering.

This targets phishing and makes enforcement more feasible.

7.3 Harmonize Across Channels

Users experience contact as one continuum; the law should reflect that.

Align core rules (truthful identity, meaningful consent, easy opt-out, no dark patterns) across:
- Email,
- SMS,
- Messaging apps,
- Push notifications,
- In-app and embedded messaging.
Close “hop” incentives where marketers escape stricter regimes by switching channels.

7.4 Regulate the Data Supply Chain, Not Just the Message

Key elements:

Clear duties on data brokers:
- Provenance records,
- Accuracy and consent auditing,
- Prohibitions on using illicitly obtained data.
Stronger rights to:
- Know where your data came from,
- Opt out of sale/sharing,
- Block use for direct marketing across channels (a “global marketing do-not-contact”).

This aligns with and extends modern privacy regimes like CCPA/CPRA rather than treating email in isolation. California DOJ Attorney General+1

7.5 Outlaw Dark Patterns in Consent & Unsubscribes

Codify, not just hint:

One-click (or close) unsubscribe.
No forced logins, captchas, surveys, or “call us to cancel.”
No pre-checked boxes or buried consent language.
Clear visual distinction between content and ads.

This builds on FTC dark patterns guidance and enforcement momentum, integrating it with message rules instead of leaving it as parallel doctrine. Federal Trade Commission+1

7.6 Expand Enforcement Levers

Options on the table:

Narrow, well-defined private right of action for repeated or willful violations.
Higher penalties for:
- Large-scale violations,
- Use of sensitive data without consent,
- Ignoring global opt-outs.
Stronger obligations on major platforms and ESPs to:
- Terminate repeat offenders,
- Cooperate on identity verification and abuse reporting.

7.7 Transparency for Automated & AI-Generated Outreach

Not about banning AI, but requiring:

Honest disclosure when large-scale outreach is automated.
Clear accountability: who trained the model, who controls the data, who is responsible for harms.
Guardrails to prevent AI from being used to bypass consent signals or resurrect suppressed contacts.

7.8 Security & Integrity by Design

Require big senders to:

Maintain auditable logs of consent and unsubscribe events.
Implement rate limiting, anomaly detection, and abuse monitoring.
Cooperate on cross-border enforcement where infrastructure is U.S.-based.

8. Practical Takeaways (For Different Audiences)

For Regulators & Policymakers

Treat CAN-SPAM as a legacy artifact that needs:
- Integration with privacy, data-broker, dark-pattern, and AI regulations.
- Targeted amendments: opt-in for third-party marketing, technical authentication, cross-channel harmonization.
Use existing unfair/deceptive practice authority to close gaps while statutory updates catch up.

For Legitimate Businesses & Marketers

If you’re only “CAN-SPAM compliant,” you’re behind.

Operate to a higher standard:

Use consent-based lists; avoid opaque list purchases.
Implement full email authentication (SPF, DKIM, DMARC).
Offer frictionless unsubscribes and real preference centers.
Align with global norms (GDPR, CASL) if you touch international data.
Audit for dark patterns; assume regulators (and users) are looking.

For Users

CAN-SPAM gives you:
- The right to opt out.
- Some protection from obviously deceptive junk.
It does not guarantee:
- Only consent-based emails.
- Relief from political, nonprofit, or “informational” influence campaigns.
- Strong remedies you can personally enforce in most cases.

Understanding those limits is step one in pushing for better protections.

9. Closing: Floor, Not Ceiling

The CAN-SPAM Act didn’t “fail” so much as it succeeded on a very narrow brief: making bad-faith commercial spam more punishable, while formalizing a tolerable level of bulk marketing.

What it never did—and was never structurally built to do—is govern:

The globalized, data-broker-fueled, AI-accelerated influence economy.
The full spectrum of channels where unwanted or manipulative contact happens.
The dark patterns and subtle design tricks that make “legal” messages deeply exploitative.

A modern regime needs to see the whole stack: identity, consent, data flows, automation, and design. Until then, CAN-SPAM remains what it is today: a minimal compliance floor in a skyscraper that doesn’t yet exist.