CAN-SPAM is only in phase one. How the law evolves depends on who provides the input.
Bringing together some of the brightest minds in the legal industry at the Spam & The Law conference resulted in more questions than answers. The good news is the questions themselves are a bellwether of industry reaction to the new law and how law makers will influence the next phase of email marketing.
Many have heard Stanford Professor Lawrence Lessig's analyses of email's faults. The obvious question arising from his condemnation of the new federal spam legislation is, "How do we fix it?" Lessig has advocated a system for labeling email and incentivizing spam recipients to report violations. Two congressional bills integrating his ideas were introduced by Rep. Zoe Lofgren and Sen. Jon Corzine.
Portions of these proposals will be at least entertained in future iterations of the CAN-SPAM Act, which requires the Federal Trade Commission (FTC) to submit:a report, within 9 months after the date of enactment of this Act, that sets forth a system for rewarding those who supply information about violations of this Act, including... procedures to minimize the burden of submitting a complaint to the Commission concerning violations of this Act... and a report, within 18 months after the date of enactment of this Act, that sets forth a plan for requiring commercial electronic mail to be identifiable from its subject line (section 11).
Studies aren't entered into law without significant political backing. In this case, the backing came from Sen. John McCain, perhaps the most influential member of Congress as far as e-commerce is concerned. The language minimizes the commission's burden, which must certainly be a high priority in light of the daily deluge of spam sent to the FTC. Don't be surprised if FTC reports find value in Lessig's proposal and new legislation incorporating it is introduced in the next congressional session.
Thought of Volunteering?
The most impressive discussion of the event was with California Attorney General Bill Lockyer, who was incredibly honest about his own lack of resources to enforce the law. He repeatedly referred to his support for his state's pre-empted email law, which permitted private right of action.
Lockyer stressed that in many law enforcement areas, he turns to private industry for support. He cited an online form that can be used to report violations; identified the staffer in charge of email issues for his office; and went so far as to give out his personal email address to anyone in the room who would provide assistance.
Lockyer is president of the National Association of Attorneys General and tasked with influencing the FTC's recommendations and congressional follow-up action. Consumers (and academic) influence on state enforcement could motivate a private right of action in a follow-up email law within a few years. To balance the trend, email marketers must be involved and work toward self-regulation and assisting law-enforcement mechanisms. Contact your AG today!
Do You Send Fraudulent E-Mail? I Didn't Think So.
On the other side of the enforcement spectrum was Thomas Dailey, Verizon counsel. The ISP's message to the email industry is the new law changes very little. Nearly every major ISP has brought legal action against spammers through state spam laws or fraud legislation.
CAN-SPAM changes little in ISPs' ability to prosecute violators of their terms and conditions. The ISPs are much more concerned with those violations than, say, marketers erroneously omitting their now-obligatory physical mailing address in an email message.
Dailey pointed out there may still need to be some clarification about what an Internet access service is. It could be argued any business supplying personnel with Internet services falls under the law's definition. If that's the case, there may be a significant loophole for private rights of action by business users. (Beginning to sound like a theme?)
Can I Get Back to You on That?
You can't blame a guy for trying. Less than a month after the law went into effect and at the beginning of the FTC's rulemaking fact-finding, the FTC's Michael Goodman couldn't possibly have answered the onslaught of clarification questions at the conference. It was telling that many attendees had very similar concerns: vagaries with the definition of "sender"; suppression responsibilities between advertisers and list owners; commercial identification; and the potential of a do-not-email registry.
The questions posed to the FTC should certainly keep it busy for the few months before it presents its report to Congress. If you're not already involved, work with your industry organization or directly with the FTC to weigh in on these important rulemaking initiatives.
Questions or comments about the legal responses to CAN-SPAM? Send me an email.
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Ben Isaacson is the privacy and compliance leader for Experian, overseeing Internet and advanced technology privacy and compliance affairs across Experian Marketing Services products including CheetahMail, Digital Advertising Services, and Hitwise. Mr. Isaacson's previous roles include serving as the executive director of the Association for Interactive Marketing (AIM), a former DMA subsidiary. He regularly blogs at EmailResponsibly.com.
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