FTC Gathers Expert Opinion for CAN-SPAM Report to Congress

  |  July 27, 2005   |  Comments

The FTC asks experts how the Act is doing.

The FTC has been holding a series of conference calls this month with email, security, and spam experts in preparation for the report due Congress in mid-December of this year, which marks the second anniversary of the passage of the CAN-SPAM Act. Many call participants spoke at the agency's Spam Forum in April 2003, as the FTC prepared recommendations for Congress on spam legislation that resulted in CAN-SPAM later that year.

FTC attorneys Mike Davis and Katie Harrington McBride moderated a call yesterday, while representatives of the agency's economic bureau listened in. What they heard is though overall the Act has been effective, experts believe there are still plenty of obstacles to overcome. Particular obstacles include the unsubscribe process, suppression list regulation, adoption of authentication technologies, enforcement, and preemption of state laws that regulate commercial email.

One point raised in yesterday's call is larger ISPs have fared well as a result of the Act, given they have the resources to both filter junk email and aggressively prosecute spammers. Smaller ISPs and businesses, meanwhile, are suffering under increased spam volume. "AOL is such a large organization, spammers treat them differently," said Chris Lewis, Nortel's senior network security analyst.

Unsubscribe procedures need more work, it was generally agreed. Eric Castelli of Lashback, an email unsubscribe service, says his company has documented that 8.5 percent of unsubscribe links lead to the mailer supplying its suppression list to other organizations, which can, under the law, email that list. Spammers are also rapidly changing domains and using registrars that don't publish contact information, which also blocks recipients' ability to opt out of lists.

Nortel's Lewis noted that open proxy zombie PCs, which churn out spam unbeknownst to their owners, are behind 80 percent of spam "and those numbers are not decreasing. The CAN-SPAM Act does not seem to have had any effect with these."

Conferees were more or less unanimous on the need for more money to direct toward enforcement, and the preemption of state laws regulating email, such as recent legislation in Utah and Michigan, that cannot be overturned without a lawsuit. The Act's requirements for non-misleading sender and subject lines also drew praise.

There was division on the call marketers are making for a sunset provision for suppression lists, which would remove unsubscribed addresses from such lists after a proposed five-year period. Marketers cite email address churn as a driver for such a regulation.

"I strongly oppose sunset provisions," said respected spam and security consultant and author John R. Levine. "I've had same address for 13 years. The assumption all addresses go away after five years is simply wrong."

The calls, transcribed by a court reporter, will eventually become part of the public record.


Rebecca Lieb

Rebecca was previously VP, U.S. operations of Econsultancy, an independent source of advice and insight on digital marketing and e-commerce. Earlier, she held executive marketing and communications positions at strategic e-services companies, including Siegel & Gale, and has worked in the same capacity for global entertainment and media companies, including Universal Television & Networks Group (formerly USA Networks International) and Bertelsmann's RTL Television. As a journalist, she's written on media for numerous publications, including "The New York Times" and "The Wall Street Journal." Rebecca spent five years as Variety's Berlin-based German/Eastern European bureau chief. Rebecca also taught at New York University's Center for Publishing, where she also served on the Electronic Publishing Advisory Group. Rebecca, author of "The Truth About Search Engine Optimization," was ClickZ's editor-in-chief for over seven years.

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