On January 1, 2004, a new Federal law went into effect called the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003." It was cleverly titled so that the acronym is CAN-SPAM.
First of all we want to say that we are not attorneys and nothing in this article constitutes legal advice. We advise you to get a copy of the law, and review it with your attorney. A copy of the law can be gotten off our web site at:
www.realwebmarketing.net/can-spam-law.pdf
The new law provides harsh penalties for certain actions, which if you are a responsible business-person, hopefully you won't be doing anyway. However, the law also changes the landscape of bulk email marketing rather significantly, and therefore all business-persons and marketers involved in sending multiple emails for marketing purposes, need to know about the law.
The Harsh Stuff
1.You can't knowingly access a protected computer without authorization and intentionally initiate the transmission of multiple commercial electronic mail messages from that computer.
2.You can't use a protected computer to relay multiple commercial email messages, with the intent to deceive recipients or an ISP as to the origin of those emails.
3.You can't materially falsify header information in multiple commercial email messages.
4.You can't register 5 or more email addresses falsifying your identity, and then initiate transmission of multiple email messages.
5.You can't falsely represent yourself as the registrant of 5 or more Internet Protocol addresses, and then initiate transmission of multiple email messages from those addresses.
"Multiple commercial electronic mail messages" are defined, for this section, as more than 100 per day. The penalties for violating the points above include fines, imprisonment ranging from 1 year to 5 years, and forfeiting of property including money you made from the emails, depending on various factors (5 years is for committing a felony via the emails). Those who pass sentences in such cases are instructed to consider enhancing the sentence if the violator harvested the email addresses from web sites or used randomly generated email addresses. So don't do any of that stuff above!
Other Points
a.Deceptive Subject Line: You cannot use a subject line in any commercial email message that is likely to mislead the recipient about the contents or subject matter of the email.
b."Askoffs": Any commercial multiple email message must contain a functioning return email address or Internet based mechanism, conspicuously displayed, that allows the person to request not to receive any future emails from the sender. This can be in the form of a menu that allows the person to choose to receive some types of email and not others, as long as it includes an option to not receive any future emails from the sender. This function must work for a minimum of 30 days after the email is sent.
c.Any request not to receive future emails must be handled within 10 days, i.e. the person's email address must be taken off your list. It's illegal to send anything to that person 10 days after an "askoff" request.
d.The laws requiring a company to take a person off their email lists within 10 days, also applies to anyone sending email on behalf of a company. This would include distributors, affiliates, etc.
e.These points don't apply if the person asks to go back on the list after asking off.
f.There must be a clear and conspicuous identification that the message is an advertisement, although the law doesn't currently define how that should be done. The law requires that within 18 months after it went into effect, the FTC must make a recommendation that the letters "ADV" or some other comparable identifier be added to the subject line. But that is not part of this current law.
g.You must include a valid physical postal address in your email.
h.By May 1st the Attorney General is supposed to prescribe clearly identifiable marks or notices to be included in sexually oriented material so that people can filter those emails out. Violating this one will get you a fine or imprisonment of up to 5 years.
i.Attorney Generals of states can sue someone for a) falsifying headers, b) deceptive subject lines, c) not including a warning for sexual material, d) showing a pattern of not having a working removal mechanism, e) showing a pattern of sending to someone after they asked to be off, and f) showing a pattern of not clearly indicating this is an ad, and not having a physical address in the email. The penalty for this can be up to $250 per email sent, for a maximum of $2 million. (Yikes!) The penalties can be reduced if you had implemented some method to prevent these things but they failed, or if you've implemented remedies since the infraction.
j.An Internet Service Provider can bring a civil suit against a person or company for a) falsifying headers, b) deceptive subject lines, c) not including a warning for sexual material, d) showing a pattern of not having a working removal mechanism, e) showing a pattern of sending to someone after they asked to be off, and f) showing a pattern of not clearly indicating this is an ad, and not having a physical address in the email. The penalty for this can be up to $100 per email sent for false headers, and $25 per email sent for everything else, for a maximum of $1 million.
k.The law says that the FTC must provide a timetable within six months of this law going into effect (July 1) for establishing a nationwide Do-Not-Email registry.
l.The law does not allow individuals to sue, as they currently can, for instance, for receiving an unsolicited commercial fax. But it does request the FTC to submit a plan that provides for substantial rewards (20% of penalties) for anyone being the first in turning a violator in.
m.None of this applies to a "transactional or relationship messages," defined as emails used to facilitate, complete or confirm a commercial transaction, send warranty, product recall, or safety information, send information on changes in terms or features, or send account, subscription, membership, loan, or other commercial relationship information.
Analysis
OK, all that is pretty scary. But if you keep certain points in with your bulk emails, you should be safe. As we said before, we are not attorneys and you should consult one. But here's a summary of the law as we understand it.
1. Don't use someone else's computer to send multiple emails, use someone else's computer as a relay, falsify header info, or register email or IP addresses under a false identity. The harshest penalties are for these actions.
2. Don't use a deceptive subject line.
3. Include a mechanism for people to request to be off your lists, ensure this is enforced company-wide (and even including any distributors and affiliates who send emails on your behalf), and do not send any emails to that person 10 days after their request.
4. Clearly identify your email as an advertisement (though the law doesn't stipulate how this is to be done). Within 18 months this will be clearly defined, probably with an "ADV" in the subject line.
5. Include a physical postal address of your company in the email.
You'll notice that much of this is not being enforced yet, based on the wild number of emails you and I receive each day that contain deceptive subject lines, don't include a working opt out mechanism and so on. But once the government gears up to enforcing the law, you will see a major change in the landscape of bulk email. And hopefully they will concentrate on the really gross violators, rather than legitimate marketers who make an occasional mistake.
But the safest thing is to know about the law, study it with your attorney, and follow the points. If you do you can send bulk email safely. And we should point out that if you work with one of the big, legitimate email rental houses, such as Net Creations or Worldata, they will help you ensure that you comply with all aspects of the law, because their business depends on it. So they know it cold.
