CAN-SPAM Act: Definitions, Implementation, and Reporting Requirements
CAN-SPAM ActDefinitions, Implementation, and Reporting Requirements
CAN-SPAM ActDefinitions, Implementation, and Reporting Requirements
[Federal Register: March 11, 2004 (Volume 69, Number 48)]
[Proposed Rule]
[Page 11775-11782]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11mr04-34]
[[Page 11775]]
-----------------------------------------------------------------------
Part V
Federal Trade Commission
-----------------------------------------------------------------------
16 CFR Part 316
Definitions, Implementation, and Reporting Requirements Under the CAN-
SPAM Act; Proposed Rule
[[Page 11776]]
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 316
[Project No. R411008]
RIN 3084-AA96
Definitions, Implementation, and Reporting Requirements Under the
CAN-SPAM Act
AGENCY: Federal Trade Commission (FTC).
ACTION: Advance notice of proposed rulemaking; request for public
comment.
-----------------------------------------------------------------------
SUMMARY: The FTC is requesting comment on various topics related to
Sec. Sec. 3(2)(c), 3(17)(B), 5(c)(1), 5(c)(2), and 13 of the
Controlling the Assault of Non-Solicited Pornography and Marketing Act
of 2003 (``CAN-SPAM Act'' or ``the Act''). In addition, the FTC is
requesting comment on topics relevant to certain reports to Congress
required by additional provisions of the CAN-SPAM Act.
DATES: Comments addressing the ``National Do Not E-mail'' Registry must
be submitted on or before March 31, 2004. Comments addressing any other
aspect of the CAN-SPAM Act must be submitted on or before April 12,
2004.
ADDRESSES: Interested parties are invited to submit written comments.
Comments should refer to ``CAN-SPAM Act Rulemaking, Project No.
R411008'' to facilitate the organization of comments. A comment filed
in paper form should include this reference both in the text and on the
envelope, and should be mailed to the following address: Federal Trade
Commission, CAN-sySPAM Act, Post Office Box 1030, Merrifield, VA 22116-
1030. Please note that courier and overnight deliveries cannot be
accepted at this address. Courier and overnight deliveries should be
delivered to the following address: Federal Trade Commission/Office of
the Secretary, Room 159-H, 600 Pennsylvania Avenue, NW., Washington, DC
20580. Comments containing confidential material must be filed in paper
form.
An electronic comment can be filed by (1) clicking on http://www.regulations.gov
; (2) selecting ``Federal Trade Commission'' at
``Search for Open Regulations;'' (3) locating the summary of this
Notice; (4) clicking on ``Submit a Comment on this Regulation;'' and
(5) completing the form. For a given electronic comment, any
information placed in the following fields--``Title,'' ``First Name,''
``Last Name,'' ``Organization Name,'' ``State,'' ``Comment,'' and
``Attachment''--will be publicly available on the FTC Web site. The
fields marked with an asterisk on the form are required in order for
the FTC to fully consider a particular comment. Commenters may choose
not to fill in one or more of those fields, but if they do so, their
comments may not be considered.
The FTC Act and other laws the Commission administers permit the
collection of public comments to consider and use in this proceeding as
appropriate. All timely and responsive public comments with all
required fields completed, whether filed in paper or electronic form,
will be considered by the Commission, and will be available to the
public on the FTC Web site, to the extent practicable, at http://www.ftc.gov.
As a matter of discretion, the FTC makes every effort to
remove home contact information for individuals from the public
comments it receives before placing those comments on the FTC Web site.
More information, including routine uses permitted by the Privacy Act,
may be found in the FTC's privacy policy, at http://www.ftc.gov/ ftc/
privacy.htm.
FOR FURTHER INFORMATION CONTACT: Michael Goodman, Staff Attorney, (202)
326-3071; or Catherine Harrington-McBride, Staff Attorney, (202) 326-
2452; Division of Marketing Practices, Bureau of Consumer Protection,
Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC
20580.
SUPPLEMENTARY INFORMATION:
I. Background
The CAN-SPAM Act, which took effect on January 1, 2004, imposes a
series of new requirements on the use of commercial electronic mail
messages (``email''). In addition, the Act gives federal civil and
criminal enforcement authorities new tools to combat unsolicited
commercial email (``UCE'' or ``spam''). The Act also allows state
attorneys general to enforce its civil provisions, and creates a
private right of action for providers of Internet access services.
The CAN-SPAM Act directs the Commission to issue regulations, not
later than 12 months following the enactment of the Act, ``defining the
relevant criteria to facilitate the determination of the primary
purpose of an electronic mail message.''1 The term ``the primary
purpose'' is incorporated in the Act's definition of the key term
``commercial electronic mail message.'' Specifically, ``commercial
electronic mail message'' encompasses ``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
website operated for a commercial purpose.)'' 2
---------------------------------------------------------------------------
1 CAN-SPAM Act, Sec. 3(2)(C).
2 CAN-SPAM Act, Sec. 3(2)(A) (emphasis supplied).
---------------------------------------------------------------------------
The CAN-SPAM Act also provides discretionary authority for the
Commission to issue regulations concerning certain of the Act's other
definitions and provisions.3 Specifically, the Commission is
authorized to:
---------------------------------------------------------------------------
3 The Act authorizes the Commission to use notice and comment
rulemaking pursuant to the Administrative Procedures Act, 5 U.S.C.
553. CAN-SPAM Act, Sec. 13.
---------------------------------------------------------------------------
Modify the definition of the term
``transactional or relationship message'' under the Act ``to the extent
that such modification is necessary to accommodate changes in
electronic mail technology or practices and accomplish the purposes of
[the] Act;'' 4
---------------------------------------------------------------------------
4 CAN-SPAM Act, Sec. 3(17)(B).
---------------------------------------------------------------------------
Modify the 10-business-day period prescribed in
the Act for honoring a recipient's opt-out request;5
---------------------------------------------------------------------------
5 CAN-SPAM Act, Sec. 5(c)(1)(A)-(C).
---------------------------------------------------------------------------
Specify activities or practices as aggravated
violations (in addition to those set forth as such in Sec. 5(b) of the
CAN-SPAM Act) ``if the Commission determines that those activities or
practices are contributing substantially to the proliferation of
commercial electronic mail messages that are unlawful under subsection
[5(a) of the Act];'' 6 and
---------------------------------------------------------------------------
6 CAN-SPAM Act, Sec. 5(c)(2).
---------------------------------------------------------------------------
Issue regulations to implement the provisions of
this Act.'' 7
---------------------------------------------------------------------------
7 CAN-SPAM Act, Sec. 13(a). This provision excludes from the
scope of its general grant of rulemaking authority Sec. 4 of the
Act (relating to criminal offenses) and Sec. 12 of the Act
(expanding the scope of the Communications Act of 1934). In
addition, Sec. 13(b) limits the general grant of rulemaking
authority in Sec. 13(a) by specifying that the Commission may not
use that authority to establish ``a requirement pursuant to Sec.
5(a)(5)(A) to include any specific words, characters, marks, or
labels in a commercial electronic mail message, or to include the
identification required by Sec. 5(a)(5)(A) in any particular part
of such a mail message (such as the subject line or body).'' Section
5(a)(5)(A) provides that ``it is unlawful for any person to initiate
the transmission of any commercial electronic mail message to a
protected computer unless the message provides clear and conspicuous
identification that the message is an advertisement or solicitation
* * * ''
---------------------------------------------------------------------------
In issuing this Advance Notice of Proposed Rulemaking (``ANPR''),
the Commission initiates the mandatory ``primary purpose'' rulemaking
proceeding by soliciting comment on issues relating to that term and
its use in the Act. In addition, this notice solicits comments on the
several areas of discretionary regulation listed above. Finally, the
Commission also seeks
[[Page 11777]]
comment in this ANPR on a variety of topics relevant to certain reports
that, pursuant to the mandate of the CAN-SPAM Act, the Commission must
issue within the coming two years.
II. Mandatory ``Primary Purpose'' Rulemaking
The CAN-SPAM Act mandates that the FTC issue regulations ``defining
the relevant criteria to facilitate the determination of the primary
purpose of an electronic mail message.'' This mandate is integral to
the Act's definition of ``commercial electronic mail message.'' 8
Generally, the Act applies only to messages that fall within this
definition.9 Thus, the ``primary purpose'' regulation will elucidate
how to determine whether a particular message constitutes a
``commercial electronic mail message,'' and is therefore subject to the
CAN-SPAM Act's requirements and prohibitions. Accordingly, the FTC
seeks comment on how to determine an electronic mail message's primary
purpose, including comment on criteria that would facilitate this
determination.
---------------------------------------------------------------------------
8 CAN-SPAM, Sec. 3(2)(C).
9 One provision, Sec. 5(a)(1), which prohibits false or
misleading transmission information, applies equally to ``commercial
electronic mail messages'' and ``transactional or relationship
messages'; otherwise, CAN-SPAM's prohibitions and requirements cover
only ``commercial electronic mail messages.''
---------------------------------------------------------------------------
III. Subjects for Discretionary Rulemaking Under the CAN-SPAM Act
In addition to seeking comment on the mandatory ``primary purpose''
rulemaking, the Commission also seeks comment on the four areas of
discretionary rulemaking that were established in the Act. These four
areas, described in detail below, are: (1) The Act's definition of
``transactional or relationship messages;'' (2) the 10-business-day
period for processing opt-out requests; (3) the Act's enumeration of
``aggravated violations;'' and (4) the implementation of the provisions
of the CAN-SPAM Act generally.
A. Transactional or Relationship Messages
The CAN-SPAM Act designates five broad categories of messages as
``transactional or relationship messages.''10 The Act excludes these
messages from its definition of ``commercial electronic mail message,''
11 and thus excludes them from most of the Act's substantive
requirements and prohibitions.12 ``Transactional or relationship
messages'' are those, the primary purpose of which is either:
---------------------------------------------------------------------------
10 CAN-SPAM Act, Sec. 3(17).
11 CAN-SPAM Act, Sec. 3(2)(B).
12 See note 9 above.
---------------------------------------------------------------------------
To facilitate, complete, or confirm a commercial
transaction that the recipient has previously agreed to enter into with
the sender;
To provide warranty information, product recall
information, or safety or security information with respect to a
commercial product or service used or purchased by the recipient;
To provide specified types of information with
respect to a subscription, membership, account, loan, or comparable
ongoing commercial relationship involving the ongoing purchase or use
by the recipient of products or services offered by the sender; 13
---------------------------------------------------------------------------
13 The specified types of information are: notification
concerning a change in the terms or features; notification of a
change in the recipient's standing or status; or regular periodic
account statement or balance information. CAN-SPAM Act, Sec.
3(17)(A)(iii).
---------------------------------------------------------------------------
To provide information directly related to an
employment relationship or related benefit plan in which the recipient
is currently involved, participating, or enrolled; or
To deliver goods or services, including product
updates or upgrades, that the recipient is entitled to receive under
the terms of a transaction that the recipient has previously agreed to
enter into with the sender.
Section 3(17)(B) gives the Commission the authority to modify the
definition in Sec. 3(17)(A) to ``expand or contract the categories of
messages that are treated as ``transactional or relationship messages''
for the purposes of this Act to the extent that such modification is
necessary to accommodate changes in electronic mail technology or
practices and accomplish the purposes of the Act.'' 14 Accordingly,
the FTC seeks comment on the categories of ``transactional or
relationship messages'' identified in the Act, and on how changes in
technology or practices might warrant modifications with respect to
these categories to accomplish the purposes of the Act. The Commission
seeks comment on additional categories of messages that changes in
technology or practices might warrant excluding from the definition of
``commercial electronic messages'' by designating them as
``transactional or relationship messages.'' The Commission also seeks
comment on additional categories of messages that might warrant
designation as ``transactional or relationship messages'' to accomplish
the purposes of the Act. The Commission also seeks comment on
categories listed in Sec. 3(17) that, due to changing technology or
practices, might become inappropriate to exclude from coverage of CAN-
SPAM's provisions as ``transactional or relationship messages.''
---------------------------------------------------------------------------
14 CAN-SPAM Act, Sec. 3(17)(B).
---------------------------------------------------------------------------
B. 10-Business-Day Period for Processing Opt-Out Requests
Section 5(a)(4) of the CAN-SPAM Act addresses the time within which
a request to ``opt-out'' of receiving additional electronic mail
messages must be honored. Section 5(a)(4)(A) prohibits senders and
persons acting on their behalf from initiating the transmission of a
commercial email message to any recipient who has opted out of
receiving their commercial email messages. This section also provides
that senders have ten (10) business days after receiving a recipient's
opt-out request to process it and put it into effect.
Section 5(c)(1) gives the Commission the authority to issue
regulations modifying the 10-business-day period for processing
recipients' opt-out requests if the Commission determines that a
different time period would be more reasonable ``after taking into
account (A) the purposes of [subsection 5(a)]; (B) the interests of
recipients of commercial electronic mail; and (C) the burdens imposed
on senders of lawful commercial electronic mail.'' 15 Accordingly,
the FTC seeks comment on the reasonableness of the 10-business-day time
period for processing opt-out requests, and on whether a different time
period would be more reasonable, in view of the three considerations
enumerated in the statute and the relative costs and benefits.
---------------------------------------------------------------------------
15 CAN-SPAM Act, Sec. 5(c)(1).
---------------------------------------------------------------------------
C. Additional Aggravated Violations
Section 5(c)(2) of the Act grants the Commission rulemaking
authority with respect to the list of ``aggravated violations'' set
forth in Sec. 5(b) of the Act. The practices listed in Sec. 5(b)
include email address harvesting and dictionary attacks. The Act's
provisions relating to enforcement by the States and by providers of
Internet access service create the possibility of increased statutory
damages if the court finds a defendant has engaged in one of the
practices specified in Sec. 5(b) while also violating Sec. 5(a).
Specifically, Sec. Sec. 7(f)(3)(C) and (g)(3)(C) permit the court to
increase a statutory damages award up to three times the amount that
would have been granted without the commission of an aggravated
[[Page 11778]]
violation.16 The Commission seeks comment on what activities and
practices, if any, should be added to the list of aggravated violations
under Sec. 5(b) of the Act.
---------------------------------------------------------------------------
16 This heightened statutory damages calculation also applies
when a court finds that the defendant's violations of Sec. 5(a)
were committed ``willfully and knowingly.'' CAN-SPAM Act, Sec. Sec.
7(f)(3)(C) and (g)(3)(C).
---------------------------------------------------------------------------
D. Implementation of Provisions of the CAN-SPAM Act Generally
Section 13 of the Act details the fourth and final area of
discretionary rulemaking by the Commission under the CAN-SPAM Act.
Specifically, Sec. 13(a) provides that the Commission may issue
regulations to implement the provisions of the Act.17 Accordingly,
the Commission seeks comment on any additional regulations that may
help implement the provisions of the Act.
---------------------------------------------------------------------------
17 As noted above, the Act expressly excludes from this grant
of rulemaking authority the criminal provisions in Sec. 4 and its
amendment of the Communications Act of 1934 in Sec. 12. Section
13(b) further limits the scope of this rulemaking authority by
prohibiting the Commission from requiring any specific words,
characters, marks, or labels in a commercial email pursuant to Sec.
5(a)(5)(A), or from requiring the identification required by Sec.
5(a)(5)(A) in any particular part of a commercial email, such as the
subject line or body. See note 7, above.
---------------------------------------------------------------------------
Since the effective date of CAN-SPAM, several issues have
repeatedly arisen that potentially may warrant rulemaking under Sec.
13. The first of these involves a scenario where a sender of a
commercial email message seeks to induce recipients to forward the
message to friends and acquaintances, who, in turn, are urged to
forward the message. The Commission seeks comment on whether it would
further the purposes of CAN-SPAM or assist the efforts of companies and
individuals seeking to comply with the Act if the Commission were to
adopt rule provisions clarifying the legal obligations of initiators
and recipients who forward messages in such ``forward-to-a-friend''
scenarios.
The second issue involves whether several entities or persons
simultaneously could be considered the ``sender'' of a particular
electronic mail message under the terms of the Act. For example, an
email message that promotes an upcoming conference and also includes
ads from the companies sponsoring the conference may have more than one
sender. A common concern regarding this type of message is whether it
may be sent to a recipient who has previously opted out of receiving
messages from one of the sponsoring companies whose ad is in the
message. The Commission seeks comment on whether it would further the
purposes of CAN-SPAM or assist the efforts of companies and individuals
seeking to comply with the Act if the Commission were to adopt rule
provisions clarifying the obligations of multiple senders under the
Act.
The third issue involves the requirement of Sec. 5(a)(5)(A)(iii)
of the Act for initiators of commercial electronic mail to include in
their messages, inter alia, ``a valid physical postal address of the
sender.'' Some companies and individuals seeking to comply with the Act
have sought guidance on what is necessary for an address to meet the
requirements of the Act. Some have asked whether a valid physical
postal address would include a Post Office box or commercial mail drop.
The Commission seeks comment on whether it would further the purposes
of CAN-SPAM or assist the efforts of companies and individuals seeking
to comply with the Act if the Commission were to adopt rule provisions
clarifying what constitutes a valid physical postal address of the
sender.
There may be other issues of interpretation or compliance that have
not yet come to the attention of the Commission but that might warrant
consideration for rulemaking under Sec. 13 of the Act. The Commission
seeks comment on any such issues, and solicits specific recommendations
for proposed provisions that might further the purposes of CAN-SPAM or
assist the efforts of companies and individuals seeking to comply with
the Act.
IV. Reports Required by CAN-SPAM
CAN-SPAM requires the Commission to prepare and submit to Congress
four separate reports within the next two years: A report on
establishing a nationwide marketing Do Not E-mail registry to be
submitted by June 16, 2004; a report on establishing a system for
rewarding those who supply information about CAN-SPAM violations by
September 16, 2004; a report setting forth a plan for requiring
commercial email to be identifiable from its subject line by June 16,
2005; and a report on the effectiveness of CAN-SPAM by December 16,
2005.
A. National Do Not E-Mail Registry
Section 9(a) of the CAN-SPAM Act mandates a Commission report
setting forth ``a plan and timetable for establishing a nationwide
marketing Do-Not-E-Mail registry.'' The report is to include ``an
explanation of any practical, technical, security, privacy,
enforceability, or other concerns that the Commission has regarding
such a registry; and * * * an explanation of how the registry would be
applied with respect to children with email accounts.''18 Moreover,
Sec. 9(b) provides that ``the Commission may establish and implement
the plan, but not earlier than 9 months after the date of enactment of
this Act.'' Thus, Congress has authorized establishment of a National
Do Not E-Mail Registry, but is interested in learning of potential
concerns about practicality, technical feasibility, privacy, and
enforceability that such a registry raises. The Commission issued a
Request for Information (``RFI'') to potential vendors seeking
information on how an effective registry might be structured,19 and
is also seeking comment in response to this Notice that would assist it
in preparing this report.
---------------------------------------------------------------------------
18 CAN-SPAM Act, Sec. 9(a).
19 This RFI is available at: http://www.ftc.gov/ftc/oed/fmo/procure/040224donotemailrfi.pdf.
Responses to this RFI were due on
or before March 10, 2004.
---------------------------------------------------------------------------
B. A System for Rewarding Those Who Supply Information About CAN-SPAM
Violations
Section 11(1) of the Act requires the Commission, on or before
September 16, 2004, to submit a report to the Senate Committee on
Commerce, Science, and Transportation and the House of Representatives
Committee on Energy and Commerce setting forth a system for rewarding
those who supply information about violations of the Act. The statute
further specifies that the report include ``procedures for the
Commission to grant a reward of not less than 20 percent of the total
civil penalty collected for a violation of the Act to the first person
that identifies the person in violation of the Act, and supplies
information that leads to the successful collection of a civil penalty
by the Commission.'' (The Act, however, does not authorize the
Commission to establish or implement such a reward system.) In
addition, the statute requires that the report also include
``procedures to minimize the burden of submitting a complaint to the
Commission concerning violations of [the CAN-SPAM] Act, including
procedures to allow the electronic submission of complaints to the
Commission.'' Accordingly, the Commission seeks comment that would
assist it in preparing this report.
C. Labeling Commercial Electronic Mail
Section 11(2) of the Act requires the Commission to submit a report
that sets forth a plan for requiring commercial email to be
identifiable from its subject line, or an explanation of any concerns
the Commission has that cause the Commission to recommend against the
[[Page 11779]]
plan.20 This report is due on or before June 16, 2005. Accordingly,
the Commission seeks comment on how best to require that commercial
email be identifiable from its subject line, and on concerns about
implementing this type of labeling requirement. In particular,
information is sought concerning the feasibility, costs, and benefits
of labeling commercial email.
---------------------------------------------------------------------------
20 Section 11(2) expressly contemplates that the means for
making commercial electronic mail identifiable from its subject line
should be ``by means of compliance with Internet Engineering Task
Force Standards, the use of the characters ``ADV'' in the subject
line, or other comparable identifier.''
---------------------------------------------------------------------------
D. Effectiveness and Enforcement of the CAN-SPAM Act
Section 10 of the CAN-SPAM Act requires the Commission to submit a
report to Congress providing a detailed analysis of the effectiveness
and enforcement of the Act and the need (if any) for Congress to modify
such provisions. This report is due on or before December 16, 2005, and
must include:
An analysis of the extent to which technological
and marketplace developments, including changes in the nature of the
devices through which consumers access their electronic mail messages,
may affect the practicality and effectiveness of the Act;
Analysis and recommendations concerning how to
address commercial email that originates in or is transmitted through
or to facilities or computers in other nations; and
Analysis and recommendations concerning options
for protecting consumers, including children, from receiving and
viewing commercial email that is obscene or pornographic.
Accordingly, the Commission seeks comment on how the effectiveness
and enforcement of the Act should be assessed, and on the specific
areas of inquiry set forth in Sec. 10 of the Act.
V. Communications by Outside Parties to Commissioners or Their Advisors
Written communications and summaries or transcripts of oral
communications respecting the merits of this proceeding from any
outside party to any Commissioner or Commissioner's advisor will be
placed on the public record. See 16 CFR 1.26(b)(5).
VI. Invitation to Comment
All persons are hereby given notice of the opportunity to submit
written data, views, facts, and arguments addressing the issues raised
by this Notice. Written comments on the National Do Not E-Mail Registry
must be submitted on or before March 31, 2004. Written comments on all
other aspects of the CAN-SPAM Act must be submitted on or before April
12, 2004. Comments should refer to ``CAN-SPAM Act Rulemaking, Project
No. R411008'' to facilitate the organization of comments. A comment
filed in paper form should include this reference both in the text and
on the envelope, and should be mailed to the following address: Federal
Trade Commission, CAN-SPAM Act, Post Office Box 1030, Merrifield, VA
22116-1030. Please note that courier and overnight deliveries cannot be
accepted at this address. Courier and overnight deliveries should be
delivered to the following address: Federal Trade Commission/Office of
the Secretary, Room 159-H, 600 Pennsylvania Avenue, NW., Washington, DC
20580. If the comment contains any material for which confidential
treatment is requested, it must be filed in paper (rather than
electronic) form, and the first page of the document must be clearly
labeled ``Confidential.''21
---------------------------------------------------------------------------
21 Commission Rule 4.2(d), 16 CFR 4.2(d). The comment must be
accompanied by an explicit request for confidential treatment,
including the factual and legal basis for the request, and must
identify the specific portions of the comment to be withheld from
the public record. The request will be granted or denied by the
Commission's General Counsel, consistent with applicable law and the
public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c).
---------------------------------------------------------------------------
An electronic comment can be filed by (1) clicking on http://www.regulations.gov
; (2) selecting ``Federal Trade Commission'' at
``Search for Open Regulations;'' (3) locating the summary of this
Notice; (4) clicking on ``Submit a Comment on this Regulation;'' and
(5) completing the form. For a given electronic comment, any
information placed in the following fields--``Title,'' ``First Name,''
``Last Name,'' ``Organization Name,'' ``State,'' ``Comment,'' and
``Attachment''--will be publicly available on the FTC Web site. The
fields marked with an asterisk on the form are required in order for
the FTC to fully consider a particular comment. Commenters may choose
not to fill in one or more of those fields, but if they do so, their
comments may not be considered.
The FTC Act and other laws the Commission administers permit the
collection of public comments to consider and use in this proceeding as
appropriate. All timely and responsive public comments with all
required fields completed, whether filed in paper or electronic form,
will be considered by the Commission, and will be available to the
public on the FTC Web site, to the extent practicable, at http://www.ftc.gov.
As a matter of discretion, the FTC makes every effort to
remove home contact information for individuals from the public
comments it receives before placing those comments on the FTC Web site.
More information, including routine uses permitted by the Privacy Act,
may be found in the FTC's privacy policy, at http://www.ftc.gov/ftc/privacy.htm
.
Without limiting the scope of issues on which it seeks comment, the
Commission is particularly interested in receiving comments on the
following questions. In responding to these questions, include
detailed, factual support whenever possible.
A. Criteria for Determining Whether ``The Primary Purpose'' of an
Electronic Mail Message is Commercial
1. The term ``the primary purpose'' could be interpreted to mean
that an email's commercial advertisement or promotion is more important
than all of the email's other purposes combined. Does this
interpretation provide relevant criteria to help determine the primary
purpose of an email? Why or why not? When an email has more than one
purpose, what determines whether one purpose is more important than all
other purposes combined?
2. The term ``the primary purpose'' could be interpreted to mean
that the email's commercial advertisement or promotion is more
important than any other single purpose of the email, but not
necessarily more important than all other purposes combined. Does this
interpretation provide relevant criteria to help determine the primary
purpose of an email? Why or why not? When an email has more than one
purpose, what determines whether one purpose is more important than any
other purpose?
3. In other contexts, the FTC has stated that marketing material is
to be judged by the net impression that the material as a whole makes
on the reasonable observer. The ``net impression'' standard has been
used to assess the meaning of an advertisement and the adequacy of
disclosures. This standard takes into account placement of disclosures
within the marketing material, the proximity of disclosures to the
relevant claims, the prominence of the disclosures, and whether other
parts of the marketing material distract attention from the disclosure.
Should this ``net impression'' analysis be applied to determining
whether the primary purpose of an email is a commercial advertisement
or promotion? Why or why not? Are there considerations unique to
electronic mail that would influence the application of such analysis,
and if so, how?
[[Page 11780]]
4. The term ``the primary purpose'' could be interpreted to mean
that a commercial advertisement or promotion in an email is more than
incidental to the email. Does this interpretation provide relevant
criteria to help determine ``the'' primary purpose of an email? Why or
why not?
5. In determining whether a commercial advertisement or promotion
in an email is the primary purpose of the email, one approach could be
to base the analysis on whether the commercial aspect of the email
financially supports the other aspects of the email. For example, an
electronic newsletter may be funded by advertising within the
newsletter. Such advertising arguably would not constitute the primary
purpose of the newsletter. Does the issue of whether the commercial
aspect provides the financial support for non-commercial content
provide relevant criteria to help determine the primary purpose of an
email? Why or why not? Does it matter what the overall purpose of the
newsletter is? Why or why not? Is this an appropriate way to approach
the question of whether an email's primary purpose is commercial? Why
or why not?
6. Should the identity of an email's sender affect whether or not
the primary purpose of the sender's email is a commercial advertisement
or promotion? Why or why not? For example, if a professional sports
league sends email promoting its involvement with a charitable
organization, should that email be considered to have a commercial
``primary purpose'' under the Act based on the league's ``for-profit''
status?
7. Are there other ways to determine whether a commercial
advertisement or promotion in an email is the primary purpose of the
email? Do these approaches provide relevant criteria to help determine
the primary purpose of an email? Why or why not?
B. Modifying What Is a ``Transactional or Relationship Message''
1. Have any changes in electronic mail technology or practices
occurred since the CAN-SPAM Act became effective on January 1, 2004,
that would necessitate modification of the CAN-SPAM Act's definition of
``transactional or relationship message'' to accomplish the purposes of
the Act?
2. Email messages that facilitate, complete, or confirm a
commercial transaction that the recipient has previously agreed to
enter into with the sender are considered transactional or relationship
messages under the Act. Are the terms ``facilitate, complete, or
confirm'' clear, or is further clarification needed to prevent evasion
of the Act's requirements and prohibitions?
3. Email messages that provide warranty information, product recall
information, or safety or security information with respect to a
commercial product or service used or purchased by the recipient are
considered transactional or relationship messages under the Act. Should
the Commission modify or elaborate on this definition? Why or why not?
4. Email messages that provide notice concerning a change in the
terms or features of a subscription, membership, account, loan, or
comparable ongoing commercial relationship involving the ongoing
purchase or use by the recipient of products or services offered by the
sender are considered transactional or relationship messages under the
Act. Should the Commission modify or elaborate on this definition? Why
or why not?
5. Email messages that provide notification of a change in the
recipient's standing or status with respect to a subscription,
membership, account, loan, or comparable ongoing commercial
relationship involving the ongoing purchase or use by the recipient of
products or services offered by the sender are considered transactional
or relationship messages under the Act. Are the terms used in this
subsection of the Act (Sec. 3(17)(A)(iii)) clear, or is further
clarification needed to prevent evasion of the Act's requirements and
prohibitions?
6. Email messages that provide, at regular periodic intervals,
account balance information or other types of account statements with
respect to a subscription, membership, account, loan, or comparable
ongoing commercial relationship involving the ongoing purchase or use
by the recipient of products or services offered by the sender are
considered transactional or relationship messages under the Act. Should
the Commission modify or elaborate on this definition? Why or why not?
7. Email messages that provide information directly related to an
employment relationship or related benefit plan in which the recipient
is currently involved, participating, or enrolled are considered
transactional or relationship messages under the Act. Should the
Commission modify or elaborate on this definition? Why or why not?
8. Email messages that deliver goods or services, including product
updates or upgrades, that the recipient is entitled to receive under
the terms of a transaction that the recipient has previously agreed to
enter into with the sender are considered transactional or relationship
messages under the Act. Should the Commission modify or elaborate on
this definition? Why or why not?
9. Some transactional or relationship messages may also advertise
or promote a commercial product or service. In such a case, is ``the
primary purpose'' of the message relevant? If so, what criteria should
determine what is ``the primary purpose'? Should such messages be
deemed to be commercial email messages? Should they be deemed
transactional or relationship messages? Why?
C. Modifying the 10-Business-Day Time Period for Processing Opt-Out
Requests
1. Is ten (10) business days an appropriate deadline for acting on
an opt-out request by deleting the requester's email address from the
sender's email directory or list? Why or why not? If not, what time
limit would be appropriate? Why?
2. What procedures are required to delete a person's email address
from the sender's email directory or list? What reasons, if any,
prevent such deletion in a time period shorter than ten (10) business
days? What burdens, including costs, would be borne by senders if the
time period were shortened? What benefits to consumers would result
from a time deadline shorter than ten (10) business days for
effectuating an opt-out request?
3. What costs are associated with deleting a person's email address
from a sender's email directory or list? What costs does the recipient
bear from unwanted electronic mail during the period from submission of
the request to the effectuation of that request?
4. What currently is the average time to create and implement
procedures to delete a person's email address from a sender's email
directory or list following that person's opt-out request? What factors
affect the length of time necessary to create and implement these
procedures?
5. What currently is the average time in which a request to be
removed from an email list is processed once these procedures have been
created and implemented? What factors affect the length of time
necessary to process such a request?
6. What is the industry standard, if any, regarding the time frame
to create and implement procedures for processing opt-out requests?
What is the industry standard, if any, regarding the time frame to
process opt-out requests once procedures have been created and
implemented?
[[Page 11781]]
7. How are lists of email addresses used for electronic mail
marketing maintained, distributed, and used? What impact, if any, do
the maintenance, distribution, and use of these lists have on the time
it takes to effectuate an opt-out request?
8. How do the size and structure of the sender's business, the use
of third-party emailers, and the manner in which opt-out requests are
received affect the time it takes to effectuate an opt-out request?
D. Identifying Additional ``Aggravated Violations''
1. Section 5(c)(2) of the Act gives the Commission authority to
``specify additional activities or practices to which [Sec. 5(b)]
applies if the Commission determines that those activities or practices
are contributing substantially to the proliferation of commercial
electronic mail messages that are unlawful under [Sec. 5(a)].''
Section 5(b) identifies four ``aggravated violations.'' What additional
activities or practices, if any, should be treated as ``aggravated
violations'' under the Act? Why should these activities or practices be
considered ``aggravated violations'? How do these activities or
practices contribute substantially to the proliferation of commercial
email that violates Sec. 5(a)? Do these activities or practices have
any use other than initiating email that violates the Act?
2. Are there new technologies that have been developed or are in
development that would contribute substantially to the proliferation of
commercial email that is unlawful under Sec. 5(a)? If so, what are
they? Should they be added to the list of ``aggravated violations''
under Sec. 5(b)? Why or why not? What are the costs and benefits to
industry in implementing procedures to overcome these technologies?
What are the costs and benefits to consumers? Do these new technologies
have any use other than initiating email that violates the Act?
E. Issuing Regulations Implementing the Act
1. Section 3(16) of the Act defines when a person is a ``sender''
of commercial email. The definition appears to contemplate that more
than one person can be a ``sender'' of commercial email; for example,
an email containing ads for four different companies. In such a case,
who is the ``sender'' of the email? What costs or burdens may be
imposed on such entities if all are determined to be ``senders''? What
costs or burdens may be imposed on consumers if only the entity
originating the email is determined to be the ``sender''? If a
consumer previously has exercised his or her rights under Sec. 5(a)(3)
by ``opting out'' from receiving commercial email from one of the
companies advertised in the email example above, has Sec. 5(a)(4) of
the Act been violated? If so, by whom?
2. Should the Commission use its authority in Sec. 13 to issue
regulations clarifying who meets the definition of ``sender'' under the
Act? If so, how? If not, why not?
3. The Act defines ``initiate'' to mean originate or transmit, or
procure the origination or transmission of, a message. In turn, the
term ``procure'' means to pay, provide consideration, or ``induce'' a
person to initiate a message on one's behalf.
a. Do ``forward-to-a-friend'' and similar marketing campaigns that
rely on customers to refer or forward commercial emails to someone
else fall within the parameters of ``inducing'' a person to initiate a
message on behalf of someone else?
b. Are there different types of such ``forwarding'' marketing
campaigns? What forms do these campaigns take?
c. Should these marketing campaigns have to comply with the Act?
Why or why not? If so, who should be considered a person who
``initiates'' the message when one recipient forwards the message to
another person? Who should be required to provide an ``opt-out''
mechanism for the message? Should each person who forwards the message
be required to comply with the Act? Should the original sender of the
message remain liable for compliance with the Act after the original
recipient forwards the message to someone else? Why or why not?
d. Do the Act's requirements and prohibitions reach email messages
containing advertisements sent by using a Web site that urges or
enables individuals to email articles or other materials to friends or
acquaintances? How, if at all, does the Act apply to this situation
when recipients have previously ``opted-out'' of receiving emails from
the advertised entities?
e. Should unsolicited commercial email campaigns that rely on
having customers refer or forward the email to other parties be
treated differently from other unsolicited commercial email? Why or
why not? If there are different types of these campaigns, should the
different types be treated differently? Why or why not?
f. If referrals or forwarding of emails should be distinguished
from other types of email, how should they be distinguished? What, if
any, restrictions should be placed on them? Why? What disclosures, if
any, should be required? Why? Should the Commission distinguish between
different types of ``forwarding'' campaigns? Why or why not?
g. What are the costs and benefits of forwarded commercial email
campaigns to consumers? To businesses? Are the costs and benefits to
consumers and industry different for forwarded commercial email
campaigns than for other types of unsolicited commercial email? Why or
why not?
4. Section 5(a)(5)(A)(iii) requires the disclosure of ``a valid
physical postal address of the sender'' in each commercial electronic
mail message. How should this required disclosure be interpreted?
Should a PO Box be considered a ``valid physical postal address''? Why
or why not? Should a commercial mail drop be considered a ``valid
physical postal address''? Why or why not?
5. Section 5(a)(1), regarding false or misleading transmission
information, addresses information displayed in a message's ``from''
line. Is the Act sufficiently clear on what information may or may not
be disclosed in the ``from'' line? What ``from'' line information
should be considered acceptable under the Act? Why? If a sender's e-
mail address does not, on its face, identify the sender by name, does
that email address comply with Sec. 5(a)(1)?
F. National Do Not E-Mail Registry Report
1. The Commission is required to write a report setting forth a
plan and timetable for establishing a nationwide marketing Do Not E-
mail Registry, including an explanation of any practical, technical,
security, privacy, enforceability, or other concerns regarding such a
registry, and an explanation of how the registry would be applied with
respect to children with email accounts. The Commission issued a
Request for Information (``RFI'') to potential vendors seeking
information on how an effective registry might be structured, and is
also seeking information from the public in this Notice. What
practical, technical, security, privacy, enforceability, and other
concerns exist with respect to establishment of such a registry? Can
these concerns be overcome so that a registry would be workable and
effective? If so, what might be an appropriate plan and timetable for
establishing a registry? Is such a registry a practical, efficient, and
workable method of solving the spam problem? What are the relative
costs and benefits?
[[Page 11782]]
2. How could such a registry be structured and applied to best
protect children with email accounts? Could such a registry be
effective as a means to protect children from inappropriate spam?
G. System for Rewarding Those Who Supply Information About CAN-SPAM
Violations
1. What kinds of information would be most useful in facilitating
enforcement of the Act? What kinds of information can the FTC
reasonably expect to receive? Would such information likely be received
in a form and manner that would make it useful in an enforcement action
to prove violations of the Act? How would this information advance the
Commission's ability to identify and locate people who violate the Act?
How could a system for rewarding those who supply information about
violations of the Act be structured? What are the relative costs and
benefits?
2. What procedures would be necessary to determine who is ``the
first person that identifies the person in violation of the Act, and
supplies information that leads to the successful collection of a civil
penalty by the Commission,'' as specified by the Act? What other
procedures would be necessary to implement a reward system, e.g., to
resolve disputes among competitors seeking to be ``the first person
that identifies the person in violation of the Act''?
3. Is the phrase ``identifies the person in violation of the Act''
sufficiently clear to provide a bright line with respect to who will be
entitled to a reward? If not, how can deciding this issue be made more
certain?
4. How would the prospect of receiving a portion of civil penalties
collected by the FTC affect existing incentives for persons who have
information about the identity of spammers to come forward with such
information?
5. How would a reward system affect the behavior of ISPs and other
industry participants with regard to initiating and conducting
investigations of spammers, and other approaches to addressing
unsolicited commercial email? Under what circumstances, if any, would
ISPs and other industry participants likely submit information under a
proposed reward system? What factors would be relevant to an ISP's
choice whether to proceed under a reward system as opposed to
proceeding under the private right of action for ISPs created by Sec.
7(g) of the Act? Specifically, what kind of information would ISPs and
other industry participants likely supply, and in what format? Would
such information likely be received in a form and manner that would
make it useful in an enforcement action to prove violations of the Act?
6. How successful have been the efforts of private entities or
others to establish and operate reward programs similar to the one
contemplated in the Act? Have such reward programs been successful in
eliciting information otherwise unavailable to support enforcement or
other legal action? Have such reward programs been successful in
achieving the goal of reducing or deterring certain conduct?
7. How might the Commission implement ``procedures to minimize the
burden of submitting a complaint to the Commission concerning
violations of [the CAN-SPAM Act], including procedures to allow the
electronic submission of complaints to the Commission,'' as provided by
the Act?
H. Study of Effects of the CAN-SPAM Act
1. The Commission is required to write a report providing a
detailed analysis of the effectiveness and enforcement of the
provisions of the Act and the need (if any) for the Congress to modify
such provisions. What measures of the effectiveness of the Act should
the Commission consider?
2. Are there any developments likely to reach the market in the
next two years that are likely to affect the effectiveness of the Act?
How should the Commission monitor these developments?
3. This report must include an analysis and recommendations
concerning how to address commercial email that originates in or is
transmitted through or to facilities or computers in other nations,
including initiatives or policy provisions that the Federal government
could pursue through international negotiations, fora, organizations,
or institutions. Given the ease of falsifying header information, how
can the Commission determine the extent to which email originates in or
is transmitted through or to facilities or computers in other nations?
How should the Commission conduct this analysis?
4. This report must include an analysis and recommendations
concerning options for protecting consumers, including children, from
the receipt and viewing of commercial email that is obscene or
pornographic. How should the Commission conduct this analysis?
I. Study of Subject Line Labeling
1. Prior to the enactment of the CAN-SPAM Act, many states required
that unsolicited non-adult commercial email have an ``ADV'' label. How
was this provision enforced by the States? What obstacles to
enforcement did the States encounter? What, if any, limitations were
found in these laws that the Commission should consider addressing in
the required report regarding subject line labeling?
2. How effective is labeling?
3. Should the Commission recommend that all unsolicited non-adult
commercial email be labeled ``ADV ''? Why or why not?
4. Would labeling, as part of a regime that includes other
technological or law enforcement approaches, be an appropriate and
effective tool to help control spam? Why or why not?
5. What are the costs and benefits to industry of labeling?
6. What are the costs and benefits to consumers of labeling?
7. If the Commission recommends that non-adult commercial email
have an ``ADV'' label, should it also recommend that senders be allowed
to provide additional explanatory information in the subject line;
e.g., ``ADV: Automobiles''? Why or why not?
J. Regulatory Flexibility Act
1. What burden to small business does the Act impose in the Act's
requirements that certain disclosures be made in commercial electronic
mail messages? How, if at all, may the burdens associated with required
disclosures be minimized?
2. Does the Act impose any disparate impact on small businesses? If
so, how may this disparate impact be minimized?
3. Describe and, where feasible, estimate the number of small
entities to which the Act applies.
VII. Conclusion
The Commission will proceed from this ANPR with proposed rulemaking
and drafting of required reports. Evaluation of comments submitted in
response to this ANPR will comprise part of the Commission's rulemaking
and report-drafting processes.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 04-5500 Filed 3-10-04; 8:45 am]
BILLING CODE 6750-01-P