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Revised:  03/07/2012

 

 

What Does the CAN SPAM Act Mean For You?

 

Disclaimer: This page does not constitute legal advice.  It is meant to supply customers and prospects with our interpretation of the Act and to delineate that Rainmaker Partner and client e-mail campaigns fully comply with the terms of the Act.

 

Although it hasn't yet seemed to have reduced it, the passing of the CAN-SPAM (Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003,") Act marshaled US federal law against the grossest form of spam. This gives regulatory agencies a tool to begin to shut down the spammers and their merchant allies. Since reportedly 80% of SPAM comes from 25 illegal entities it should not take long before some of them get shut down.   That's good news however the law  affects all legitimate companies and marketers as well that use e-mail in their marketing.  Let's take a deeper look.

 

CAN-SPAM is an opt-out law. That's right, it does not require a person to "Opt-in" to receive a mailing.  Which is good news since there has been much confusion and hypocrisy surrounding "Opt-in:", "Double Opt In" and "Opt-out" that it has had many B2B marketers bewildered to the point they were afraid to utilize the e-mail marketing medium.  With CAN SPAM, the catch for marketers is to be upfront and honest in their promotion and  that if a recipient wants to unsubscribe or opt-out, you'd better stop sending e-mails or be subject to severe penalties. This may sound simpler that it actually is to implement however.  We'll get into that later. 

 

In short, CAN-SPAM:

 

  • Prohibits fraudulent or deceptive subject lines, headers, return addresses, etc.

  • Makes it illegal to send e-mails to e-mail addresses that have been harvested from websites.

  • Criminalizes sending sexually-oriented e-mails without clear markings.

  • Requires that your have an working unsubscribe system that makes it easy for recipients to unsubscribe opt out of receiving your e-mails.

  • Requires most e-mailers to include their postal mailing address in the message.

  • Implicates not only spammers, but those who procure their services. Indeed, if you fail to prevent spammers from promoting your products and services you can prosecuted.

  • Includes both criminal and civil penalties and allows suits by the Federal Trade Commission (FTC), State Attorneys General, and Internet Service Providers.

Does CAN-SPAM Apply to Everyone?

Yes, The CAN-SPAM Act applies to essentially all businesses in the US that use e-mail. It defines a "commercial electronic mail message" -- which is regulated by this law -- as any e-mail message "the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)" (Sec. 3(2)). Nearly any business e-mail would be covered -- e-mail newsletters as well as standalone promotional e-mails. That doesn't mean that all your e-mails are spam, only that the Act governs them. Personal e-mails (and perhaps non-profit organizations) don't seem to be covered. The Act's definition of commercial e-mail explicitly excludes "a transactional or relationship message" (Sec. 3(2)(B)), covering e-mails contacting customers about their accounts, product upgrades, ongoing services, etc.

CAN SPAM vs. Superceded California & Other Proposed Bills

Unlike California's pending anti-spam legislation (which will be superseded by federal law), the CAN-SPAM Act is an opt-out approach to spam. California was going to require marketers to prove "direct consent" of those to whom they e-mail. In short, the California approach would have proved devastating for small to medium sized B2B businesses that needed to ACQUIRE new customer and wanted to use the still powerful, still low-cost medium of e-mail to help drive lead generation.  

 

In contrast, the new federal law will require businesses to stop sending e-mails to those who request to be removed from a list. This requires a functioning reply address or e-mail unsubscribe system that operates for at least 30 days after your last mass e-mailing (Sec. 5(3)). In addition, you must include your postal address and a clear indication that the e-mail includes a solicitation, unless you have "prior affirmative assent" from the recipient (Sec. 5(a)(5)).

 

Rainmaker Partners e-mail programs have always conformed to the letter of the CAN SPAM law to the extent we provide automatic, real time unsubscribe options with every campaign so that we and our customers are guaranteed compliance in this area.

E-Mail Deception Is the Crime

One of the most persistent problems with spam are tricks and deceptions that prevent spam e-mails from being filtered out and refused by ISPs and recipients. From now on, fraudsters, hackers, and tricksters can face jail time. The CAN-SPAM Act (Sections 4(a) and 5(a)) prohibits such spammer tricks as:

 

  • Hijacking another e-mail server to send or relay spam.

  • Falsifying e-mail headers or e-mail addresses to hide one's identity.

  • Using someone else's e-mail address in the "from" field.

  • Registering for e-mail addresses under false identities.

  • Deceptive subject headings.

Are Harvested E-Mails Taboo?

It's been pretty common practice for computer robots to crawl web pages and make a record of ("harvest") any e-mail addresses that appear on those pages. Other even more malicious tactics such as "dictionary attacks" utilize software that opens a connection to a  target mail server and then rapidly submits millions of random e-mail addresses. Many of these addresses have slight variations, such as "jdoe1abc@hotmail.com" and "jdoe2def@hotmail.com." The software then records which addresses are "live" and adds the addresses to the spammers list. These lists are typically resold to many other spammers.  If you see an ad or e-mail offering you 1 million e-mail addresses on a CD for $25, the addresses certain came from someone who practices one or both of these techniques

 

Rainmaker condemns the practice of dictionary attacks as they are very costly to ISP's and the entire internet infrastructure.  In addition, we have NEVER condoned the practice of "harvesting" e-mail addresses from B2B sites for several reasons the primary being the quality of these addresses is poor notwithstanding the fact the practice is often linked to SPAM.

 

Look at the addresses on your site,  they are usually jobs@xyz.com or

sales@xyz.com.  Seldom do people put discrete e-mail addresses on a web-site such as john.doe@xyz.com.  Our clients want to reach a specific person who is a decision maker at a company be it the CIO, CEO, CFO. etc. and that is part of the value proposition we feel we uniquely deliver.  Rainmaker provides only 100% corporate domain addresses such as john.doe@xyz.com NOT jdoe123@hotmail.com.

 

However, if you are or are not a client of ours and you believe you may have purchased a list from a third party that was harvested, here is our read.

 

Under the new Act, such using harvested e-mail addresses to send deceptive e-mails is illegal and can result in aggravated penalties. The Act states that it is unlawful to send -- or provide e-mail addresses for an e-mailing -- "if such person had actual knowledge, or knowledge fairly implied on the basis of objective circumstances that the electronic mail address of the recipient was obtained using an automated means from an Internet website..." (Sec. 5(b)(1)). Automated harvesting of e-mail addresses in not in itself unlawful, but using those harvested addresses to send deceptive e-mails (that violate the premises outlined above and in the Act) is unlawful.

Who Is Liable?

The law covers both spammers and those who "procure" their services (Secs. 3(9), 3(12), and 3(16)(A)). You can't just outsource your spamming and get off the hook. You can be held liable if the e-mail service you employ isn't actually using a permission-based list. Under some parts of the law you may be found guilty if you procured an e-mailing "with actual knowledge, or by consciously avoiding knowing, whether such person is engaging or will engage, in a pattern or practice that violates this Act" (Sec. 7(g)(2)).

 

You are responsible not only for the legality of your own e-mail lists, but also the legality any lists you rent or buy. If you do business with a shady operator, it could come back to bite you. You might be able to claim you had "no knowledge" of this or that they misrepresented the truth, but you might be hard-pressed prove otherwise to a judge.

 

Make sure that your vendor is a member of an accredited marketing organization such as the American Marketing Association, Direct Marketing Association or the Association for Interactive Marketing

Keep Tabs on Your Channel Partner E-Mailings

If you have affiliates using e-mail marketing to promote your products, you could be in trouble. The law stipulates that "it is unlawful for a person to promote, or allow the promotion of, that person's trade or business ... if that person knows, or should have known in the ordinary course of that person's trade or business, that the goods ... were being promoted in such a message ... and took no reasonable action to prevent the transmission..." (Sec. 6(a)).

Enforcement

When the CAN-SPAM Act becomes effective it will supercede all State anti-spam laws. Enforcement of the CAN-SPAM Act of 2003 has drawn criticism. The Act does not allow e-mail recipients to sue spammers -- only the FTC, State Attorneys General, and Internet Service Providers. However, statutory damages can be stiff. A State Attorney General can sue for $250 per illegal e-mail message up to a maximum of $2 million -- more if the offense includes certain aggravating violations (Sec. 7(f)). Internet Service Providers can sue in federal district court for $100 per illegal e-mail message up to a maximum of $1 million or more (Sec. 7(g)(3)).

How easy will the Act be to enforce? That remains to be seen. The Internet Committee of the National Association of Attorneys General warned legislators that the Act has so many loopholes, exceptions, and standards of proof that it won't protect consumers. For example, the AGs are concerned that they would have to prove not only that a subject line was deceptive, but that sender was conscious it was deceptive. They are also concerned with a somewhat ambiguous definition of commercial e-mail and feel that the opt-out requirements weren't realistic.

In Summary

Although the CAN Spam Act does not represent a panacea to responsible marketers, consumers and regulatory agencies who wish to rid the world of SPAM it does offer a big step in the right direction.  Enforcement of the ACT should help to make life more difficult for spammers.

 

Perhaps most importantly it lays the understanding of what is and is not allowed so responsible marketers can affiliate with responsible service providers to confidently utilize e-mail marketing as a medium to generate B2B leads.

 

In addition, the Act does provide for stringent opt-out processing which many organizations can justifiable be daunted by.  If that includes you, please turn to Rainmaker we can help and will appreciate your business!

 

   

 

 

 

 Call us @ (877) 418-5588

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