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CAN SPAM ACT OF 2003

Effective January 1, 2004, the CAN-SPAM ACT of 2003 (a/k/a "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003") (the "Act") supersedes existing anti-spam laws in thirty-six states.

The Act applies to U.S. businesses who send commercial e-mail and is defined in the Act as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet web site operated for a commercial purpose)." (section 3(2)(A)). However, it is important to note that the inclusion of a reference to a business or a link to web site in an electronic mail message does not, by itself, cause such e-mail message to be treated as a commercial e-mail message for purposes of the Act if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service.

PROHIBITIONS

Section 5 of the Act prohibits initiation of commercial e-mails that:

• Contain or are accompanied by a header, source, destination or routing information that is misleading or otherwise false.
  
  
• Contain knowingly deceptive “subject” headings or subject lines that are in any way unclear or inconspicuous in identifying that the e-mail is an advertisement or solicitation.
  
  
• Do not contain an operational return e-mail address or other electronic reply mechanism. The address or other mechanism must be operational for a minimum of 30 days after the initiation of the e-mail (unforeseen technical difficulties are excepted).
  
  
• Fail to provide the recipient with an "opt-out" option which effectively stops receipt of further messages. (“transactional or relationship” e-mail messages excepted).

In addition, the Act makes it unlawful:

• To fail to honor requests for removal from future e-mails within 10 business days after the receipt of such request.
  
  
• For anyone to sell or transfer the e-mail address of a recipient who submitted an opt-out request.
  
  
• For a commercial e-mail not to include a valid physical postal address for the sender.

AGGRAVATED VIOLATIONS

The Act defines “aggravated violations” that trigger more severe penalties. They are:

• Obtaining e-mail addresses from web sites with explicit policies prohibiting the sale or transfer of e-mail addresses;
  
  
• Obtaining e-mail addresses through automation such as "generating potential e-mail addresses by combining certain names, letters and numbers into numerous permutations" or "as registering for multiple e-mail accounts or online user accounts" that are used to generate spam; and
  
  
• Retransmission through computers with unauthorized access.

The Act prescribes civil penalties enforced by the Federal Trade Commission ("FTC"). The FTC also has authority to promulgate regulations pursuant to the Act. Several actions are slotted for the next 6 to 24 months including the creation of a "DO NOT E-MAIL" list.

COMPLIANCE

Companies relying on e-mail to keep in touch with customers should be compelled to take stock of current practices. It has become imperative for companies to develop protective e-mail methodologies and policies compliant with the Act. Certain actions that may be taken include the following:

• Make sure your unsubscribe system works.
  
  
• Use a confirmed or double opt-in system.
  
  
• Be honest in the manner used to obtain e-mail addresses.
  
  
• Be aware that sending e-mails to potential reciprocal linking partners whose e-mail address is identified by automatic means is illegal under the Act.
  
  
• Avoid CDs or downloads of e-mails addresses from so-called "opt-in" or "safe" e-mail address services. You'll be responsible for the legality of purchased or rented lists.
  
  
• Affiliates Agreements - Ensure that terms of the Agreement regarding e-mails are prohibited and any breach of such prohibition is considered cause for termination.

Depending upon the capability of your IT department, it may be helpful and cost-effective to use an "opt-in" or "permission-based" marketing campaigner such as Gotmarketing. Among many benefits, Gotmarketing helps to (a) assure that their client activities are compliant with current laws, and (b) protect databases of e-mail addresses from theft and (c) assure that opt-out clients are unsubscribed as requested.

CONCLUSION

CAN-SPAM ACT of 2003 represents an attempt to control spam and alter the ways in which businesses conduct e-mail marketing practices. This issue of LeapLaw's Ledger is meant to be a summary of the Act and should not be considered legal advice. LeapLaw subscribers are kept up-to-date through the LeapLaw database.

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