As per the title, is an unsolicited email about job openings from a government office (consider, as the specific case, a military recruiter) considered commercial under the CAN-SPAM Act?
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1 Answer
Probably not. Under 15 USC 7702:
The term "commercial electronic mail message" means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.
I've never seen a detailed enough examination of what constitutes a "commercial product or service" to say with certainty that job openings would be included or excluded, but Footnote 141 in the FTC's Final Rule comments suggests they are not:
One commenter argued that section 7702(17)(A)(iv)’s exemption for employment-related emails "does not go far enough" and that the final Rule should exempt "e-mails regarding current or prospective job openings that are sent to individuals who are not currently employed by the sender, and who are not charged any fees or other consideration in connection with any current or prospective job." ASA. As noted above, if such emails do not advertise or promote a product or service, they are not commercial email messages and thus they fall outside the Act.
This indicates that the FTC believes that "e-mails regarding current or prospective job openings that are sent to individuals who are not currently employed by the sender, and who are not charged any fees or other consideration in connection with any current or prospective job" do not independently "advertise or promote a product or service." And if the e-mail does not advertise or promote a product or service, it is not a commercial electronic message.
More importantly, though, CAN-SPAM does not apply to the military, as the federal government is not a "person" as defined at 16 C.F.R. § 316.2:
“Person” means any individual, group, unincorporated association, limited or general partnership, corporation, or other business entity.
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