Update on Federal
Anti-Spam Legislation
Yesterday President
Bush signed the CAN-SPAM Act of 2003, legislation that outlaws certain
practices frequently used by spammers such as misleading subject
lines and false "From" addresses. For most people involved
in legitimate, ethical use of email for direct response marketing,
the legislation will probably not have any noticeable impact on
how you conduct your campaigns. If you include clear unsubscribe
instructions in your email and you mail only to people who have
opted in to a list, you're probably not going to see much of a change.
The good news
about the legislation, which takes effect on January 1st, is that
it overrides the email marketing laws passed in 37 states, including
the draconian law enacted
in California this September.
Here's a quick
summary of the key points:
- Commercial email messages must include opt-out instructions.
- Commercial email messages must include the sender's physical
(postal) address.
- Commercial email messages must contain "clear and conspicuous
identification that the message is an advertisement or solicitation".
The law doesn't specify any standard method. Presumably a single
statement somewhere in the body of the message -- or perhaps with
the unsubscribe instructions -- would be adequate. We'll keep
Hawthorne Newsletter readers updated as we come across interpretations
of this element of the law.
- The law prohibits the use of deceptive subject lines
and false headers in such messages.
- The law authorizes, but does not require, the Federal Trade
Commission (FTC) to create a "do-not-email" registry.
Back in August, the chairman of the FTC expressed doubt about
the effectiveness and feasibility of such a registry. But given
the popularity of the "Do not call" list, the FTC might
be under pressure to follow through on this element of the bill.
- State laws that require labels on unsolicited commercial e-mail
or prohibit such messages entirely would be pre-empted, although
provisions merely addressing falsity and deception would remain
in place.
- In general, enforcement is left up to the FTC. While it doesn't
allow individuals to sue, ISP's are allowed go after spammers
in court.
- Gray area: The law excludes from its definition of "commercial
electronic mail message" any messages that are "transactional
or relationship" messages. The language of the bill provides
no further clarification on what constitutes a "transactional
or relationship message."
- The "long name": CAN-SPAM is an acronym for "Controlling
the Assault of Non-Solicited Pornography and Marketing Act."
You can read the complete text of the bill at:
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_bills&docid=f:s877enr.txt.pdf
Again, we'll
keep Hawthorne Newsletter readers updated as we learn more about
how to interpret the provisions of the new law.
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