CIPP-US Reviews Questions

The Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act is a law passed in 2003 that establishes the first national standards for the sending of commercial e-mail in the United States. The law requires the Federal Trade Commission (FTC) to enforce its provisions. The law applies to any commercial e-mail message, which is defined as any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service. The law does not apply to transactional or relationship messages, which are messages that facilitate an agreed-upon transaction or update a customer about an existing business relationship. The law also does not apply to non-commercial messages, such as political or charitable solicitations12

The CAN-SPAM Act is intended to help consumers by giving them more control over the commercial e-mails they receive. The law does not require companies to obtain prior consent (opt-in) from consumers before sending them commercial e-mails, but it does require companies to honor consumers’ requests to stop receiving such e-mails (opt-out). The law specifies that each commercial e-mail message must include a clear and conspicuous notice of the opportunity to decline to receive further messages from the sender, and a valid physical postal address of the sender. The sender must provide a functioning return e-mail address or other Internet-based mechanism that allows the recipient to submit an opt-out request. The sender must honor the opt-out request within 10 business days and must not sell, exchange, or transferthe e-mail address of the opt-out requester to another entity, unless the other entity is acting as an agent of the sender12

By requiring companies to allow consumers to opt-out of future e-mails, the CAN-SPAM Act aims to reduce the amount of unwanted and unsolicited commercial e-mail that consumers receive, and to protect their privacy and preferences. The law also imposes other requirements on companies that send commercial e-mails, such as banning false or misleading header information and deceptive subject lines, requiring the identification of the message as an advertisement, and requiring the labeling of sexually explicit content. The law also authorizes the FTC and other federal agencies to enforce the law and impose civil penalties for violations12

References:

Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act)

IAPP CIPP/US Certified Information Privacy Professional Study Guide, Chapter 4: Federal Privacy Laws, Section 4.4: The CAN-SPAM Act

 The European approach to privacy is based on the recognition of privacy as a fundamental human right that requires strong legal protection and oversight. The EU has adopted comprehensive and binding privacy laws, such as the General Data Protection Regulation (GDPR) and the ePrivacy Directive, that apply to all sectors and activities involving personal data. The EU also has independent data protection authorities (DPAs) that monitor and enforce compliance with the privacy laws, and a European Data Protection Board (EDPB)that issues guidance and opinions on privacy matters. The EU also requires adequate levels of privacy protection for personal data transferred to third countries or international organizations.

In contrast, the U.S. approach to privacy is based on a sectoral and self-regulatory model that relies on a combination of federal and state laws, industry codes of conduct, consumer education, and market forces. The U.S. does not have a single, comprehensive, and enforceable federal privacy law that covers all sectors and activities involving personal data. Instead, the U.S. has a patchwork of federal and state laws that address specific issues or sectors, such as health, financial, children’s, and electronic communications privacy. The U.S. also has various federal and state agencies that share jurisdiction over privacy matters, such as the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), and the Department of Health and Human Services (HHS). The U.S. also relies on self-regulation by industries that develop and adhere to voluntary codes of conduct, standards, and best practices for privacy. The U.S. also allows personal data to be transferred to third countries or international organizations without requiring adequate levels of privacy protection, as long as the data subjects have given their consent or the transfer is covered by a mechanism such as the Privacy Shield or the Standard Contractual Clauses.

Some supporters of the European approach to privacy are skeptical about self-regulation of privacy practices because they believe that self-regulation is not effective, consistent, or accountable enough to protect the rights and interests of data subjects. They argue that self-regulation may not provide sufficient incentives or sanctions for industries to comply with privacy rules, or to adopt privacy-enhancing technologies and practices. They also contend that self-regulation may not reflect the views and expectations of data subjects, or address the emerging and complex privacy challenges posed by new technologies and business models. They also question the transparency and legitimacy of self-regulation, and the ability of data subjects to exercise their rights and seek redress for privacy violations. References:

IAPP CIPP/US Study Guide, Chapter 1: Introduction to the U.S. Privacy Environment, pp. 9-10, 16-17

IAPP website, CIPP/US Certification

NICCS website, Certified Information Privacy Professional/United States (CIPP/US) Training

The Fair and Accurate Credit Transactions Act (FACTA) is an amendment to the Fair Credit Reporting Act (FCRA) that was enacted in 2003. FACTA aims to enhance consumer protection against identity theft and fraud by requiring various measures, such as free annual credit reports, fraud alerts, and identity theft prevention programs. One of the consumer protections that FACTA requires is the truncation of account numbers on credit card receipts. This means that only the last four or five digits of the account number can be printed on the receipt, while the rest must be masked or deleted. This reduces the risk of unauthorized access or use of the account number by third parties who may obtain the receipt. References:

IAPP CIPP/US Body of Knowledge, Section III, B, 1

[IAPP CIPP/US Study Guide, Chapter 3, Section 3.2]

[FACTA, Section 113]

 Federal preemption is a doctrine in law that allows a federal law to take precedence over or to displace a state law in certain matters of national importance (such as interstate commerce). The doctrine is based on the Supremacy Clause of the Constitution, which declares that federal law is the “supreme law of the land” and that state judges are bound by it. There are two types of federal preemption: express and implied. Express preemption occurs when Congress expressly states that a federal law is intended to preempt certain types of state legislation. Implied preemption occurs when a state law conflicts with federal law because it is impossible to comply with both at the same time, or because it interferes with the objectives of the federal law, or because the federal government has fully occupied the field of regulation.

The U.S. Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act is an example of express preemption. The Act regulates commercial email messages and establishes requirements for senders and penalties for violations. The Act also explicitly preempts any state law that “expressly regulates the use of electronic mail to send commercial messages”, except for state laws that prohibit falsity or deception. This means that states cannot pass laws that impose greater obligations on senders of email marketing than the federal law, such as requiring opt-in consent or providing additional opt-out mechanisms. Therefore, the CAN-SPAM Act is the correct answer to the question.

The other options are not examples of federal preemption. The Payment Card Industry’s (PCI) ability to self-regulate and enforce data security standards for payment card data is not a federal law, but a private sector initiative. The U.S. Federal Trade Commission’s (FTC) ability to enforce against unfair and deceptive trade practices across sectors and industries is not a preemption of state law, but a concurrent power that can coexist with state consumer protection laws. The California Consumer Privacy Act (CCPA) regulating businesses that have no physical brick-and-mortal presence in California, but which do business there, is not preempted by any federal law, but is a state law that applies to entities that meet certain criteria of collecting or selling personal information of California residents. References: Federal preemption, What is FederalPreemption?, Federal preemption Definition & Meaning, preemption, Preemption legal definition of Preemption, CAN-SPAM Act, IAPP CIPP/US Study Guide, Chapter 2.