Opening Up the Can-Spam Act

Feb 01, 2004 10:30 PM  By

It’s been a month since the Can-Spam Act (S. 877) became law. What effect does it have on catalogers that use e-mail marketing?

On the plus side, the bill overrides tougher state laws, such as one in California (S. 186) that had been set to take effect Jan. 1. The California law sought to punish virtually all marketers, even legitimate mailers, who sent marketing e-mail to someone who hadn’t specifically requested it.

And by requiring e-mail advertisers to include a functioning return address clearly visible to recipients, a clearly stated opt-out, and a 10-business-day limit after which opt-outs from consumers must be honored or the e-mailer faces penalties (see “Can-Spam in Brief,” at right), the law could help remove the stigma from e-mail marketing. Sen. Ron Wyden (D-OR), who with Sen. Conrad Burns (R-MT) introduced the bill, called it “an important step toward stopping the kingpin spammers and stemming the flow of garbage into America’s inboxes.”

Although it doesn’t approve of Can-Spam unconditionally, the Direct Market Association does like the message that the law sends. “It says to consumers, ‘Look, there is a new level of transparency out there that’s legislated, and legitimate e-mail marketers will follow it,’” says DMA spokesperson Lou Mastria.

Many legitimate marketers, of course, were following most of the provisions of the bill before they were mandated. Other requirements, such as including a physical address in e-mails, are easy to implement. “It’s only a minor tweak to include their postal addresses in e-mails,” says Reggie Brady, president of Reggie Brady Marketing Solutions, a Norwalk, CT-based consulting firm, “as they just have to add the address to a template.”

On the down side, legitimate e-mail could find it more difficult to pass through spam filters, since the law forces unsolicited advertising e-mails to carry “ADV” on the subject line — an abbreviation that triggers many filters.

And some worry that because of a quirk that allows marketers to sell lists of consumers who had opted out to other marketers who can then initiate contact with those consumers, spam may actually increase. (See “Can-Spam’s Nasty Side,” page 26.)

“If this law is perceived by the public as not having enough teeth,” says Neal Denton, executive director of the Washington-based Alliance of Nonprofit Mailers, “they’re going to want to come back and do it again.” In other words, it could result in stiffer e-mail bills in Congress.

Do-not-e-mail list threat

Formally the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, Can-Spam has one provision that could dramatically alter the e-mail marketing programs of even law-abiding mailers: It requires the Federal Trade Commission to write by next fall a plan for a do-not-e-mail list similar to the do-not-call list it implemented this past fall. The law also gives the FTC the authority to implement such a list.

“Even if there is a do-not-e-mail list, that won’t affect anybody who’s already gotten permission,” Brady contends. But a do-not-e-mail list would force catalogers to take extra steps — such as checking the list even when customers request e-mails — which could make what is now a relatively inexpensive marketing tool more costly.

Can-Spam in Brief

Below are some specifics of Can-Spam (S. 877), the federal law that took effect Jan. 1:

  • senders of commercial e-mail must include an opt-out mechanism so that consumers can request not to receive more e-mail from them.
  • a prohibition on false and deceptive headers and subject lines, so that consumers can immediately identify the true source of the message, and so that Internet service providers can identify high-volume senders of spam (those who send more than 2,500 e-mails within a 24-hour period, 25,000 messages during a 30-day period, or 250,000 e-mails during a one-year period).
  • a provision to triple the monetary damages imposed on spammers who engage in particularly “nefarious” spamming techniques, such as using automatic software programs to harvest e-mail addresses from Websites and using a dictionary attacking software to send messages to a succession of randomly generated e-mail addresses in search of real recipients.
  • stronger enforcement by the Federal Trade Commission, state attorneys general, and Internet service providers with the potential for multimillion-dollar judgments.
  • additional criminal provisions creating several tiers of penalties, ranging up to five years in prison, for several common spamming practices, including hacking into somebody else’s computer to send bulk spam; using open relays to send bulk spam with an intent to deceive; falsifying header information in bulk spam; registering for five or more e-mail accounts using false registration information, and using these accounts to send bulk spam; and sending bulk spam from somebody else’s Internet protocol addresses.