Understanding the CAN-SPAM Act

The new anti-spam bill has now been signed into law effective January 1st 2004. It is important for marketers to understand how to comply with the new regulations. Following are some facts about the bill and definitions of language used in the bill. Anchor recommends that marketers consult legal counsel to interpret the actual language of the legislation. Facts About the Bill: The legislation, entitled Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, nicknamed the CAN-SPAM Act of 2003 (SB877), originated in the Senate. It was approved in late October with a 97-0 vote. There were a number of important improvements added through the legislative process, including the authorization for the Federal Trade Commission (FTC) to establish a nationwide Do-Not-E-mail registry for those people who do not want to receive e-mail marketing. · One of the major provisions of the bill states that the FTC must produce a report within six months on the feasibility and detailed implementation plan for the registry. Although it sounds appealing to the average consumer, implementation, ongoing maintenance and management of a nationwide Do-Not-E-mail registry are daunting tasks. The current Commissioner of the FTC (Timothy Murris) has openly shared that he believes this type of registry is impractical at best. · President Bush has stated his intent to sign the bill into law. When that happens, the new law will go into effect January 1, 2004. This is very good news for all legitimate e-mail marketers. There will finally be an overarching federal law for marketers to adhere to when sending e-mail marketing messages within the United States. This new federal legislation pre-empts the confusion created by the 38 different state anti-spam laws, including the new and controversial California law (SB186). Definitions of Language Used in the Bill Following is a brief description of the language included in this bill. Anchor recommends that you consult your legal counsel to interpret the actual language of the legislation. Definitions Affirmative Consent - Recipient expressly consented to receive the message, either in response to a clear and conspicuous request or at the recipient's own initiative, and if the message is from a party other than which the recipient communicated such consent, the recipient was given clear and conspicuous notice. Commercial Electronic Mail Message - The legislation defines commercial electronic mail message as any electronic mail message with the primary purpose of a commercial advertisement or promotion of a commercial product or services including content on an Internet website operated for a commercial purpose. The legislation specifically does not include transactional or relationship messages in the definition of commercial e-mail. However, it provides a separate and distinct definition of Transactional and Relationship Messages as follows: Transactional or relationship message means an electronic mail message the primary purpose of which is (i) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender; (ii) to provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient; (iii) to provide (I) notification concerning a change in the terms or features of; (II) notification of a change in the recipient's standing or status with respect to; or (III) at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender; (iv) to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or (v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender. The legislation states that inclusion of a link to a commercial website does not necessarily cause the message to be considered commercial in nature if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service. Major Provisions in the Bill 1. Prohibits Fraudulent E-mail Practices a. Makes it illegal to misappropriate computing resources, such as open relays and proxies, to send commercial e-mail. b. Makes it illegal to falsify header information. c. Makes it illegal to use automated means to register for multiple e-mail accounts in order to send messages in violation. d. Makes it illegal to obtain e-mail addresses through improper means such as harvesting and dictionary attacks. e. Makes it illegal to use false or misleading "From" lines and deceptive "Subject" lines. 2. Requires a working unsubscribe mechanism that must continue working for a minimum of 30-days from the date of the e-mail message. The unsubscribe must be processed within ten business days. The recipient's choice to be removed from further communication must be honored. The provision allows for more advanced means of managing subscription preferences so that a recipient may select specific types of communications they are willing to receive. 3. Requires clear and conspicuous notice and identification that the message is an advertisement or solicitation, clear and conspicuous unsubscribe mechanism, and valid physical postal address of the sender for all commercial e-mail where the recipient has not given prior affirmative consent. 4. Requires "warning labels" for sexually explicit commercial e-mail. 5. Pre-empts state laws and their private right of action provisions, but allows for state attorneys general to pursue on behalf of an individual or individuals within their state. Also allows for Internet Service Providers to sue on their own behalf. 6. Limits enforcement against third parties except where the third party owns, has more than 50 percent ownership or economic interest in the trade or business of the person who violates the provisions of the legislation or has actual knowledge that goods, products, property, or services are promoted in a commercial e-mail message the transmission of which is in violation, or expects to receive, an economic benefit from such promotion. 7. Provides for penalties of up to $2 million (can be tripled for Aggravated Damages) and up to five years imprisonment. Penalties may be reduced if reasonable commercial practices have been established and followed and the violation occurred despite reasonable commercial practices to ensure compliance with those practices. 8. Authorizes the FTC to create and maintain a do-not-e-mail registry similar to the popular do-not-call registry. The FTC is required to provide a report that spells out the plan for implementation of this registry. Also requires the FTC to provide a report on the effectiveness of this legislation 24 months from the date of effective date. 9. Requires the FCC and the FTC to work together to promulgate rules with 270 days to protect consumers against unwanted mobile/wireless commercial marketing messages. Please contact Nancy Atwood at 631-293-6100 or email natwood@anchorcomputer.com for an update on how this important legislation will affect your email campaigns starting January 1st 2004.