FTC Seeks Input on CAN-SPAM Tweaks

The Federal Trade Commission (FTC) has proposed five changes to the CAN-SPAM Act to clarify the law for senders and enhance protection for receivers.

The most notable changes include one that would clarify who is responsible when multiple parties are involved, and another that would shorten the sender’s opt-out response period to three days.

In cases where multiple advertisers or service providers are involved, the FTC proposes that, when only one advertiser controls the content of the message, determines the email addresses to which the message is sent, and is identified as the sender in the “from” line, that advertiser will be considered the sender.

The same ruling would apply even where one or more service providers controls those tasks, so an advertiser need not satisfy all three criteria, but no other advertiser may satisfy any of them without being considered an additional sender, required to meet the opt-out requirements.

“There’s no bigger definition in the Act. As it’s defined now, the sender is whoever advertises in the message, but when there’s more than one advertiser — and so more than one sender — compliance can get tricky,” said Trevor Hughes, executive director of the E-mail Service Providers Coalition (ESPC).

Senders will also receive clarification on whether they can use a Post Office box or private mailbox as a valid physical postal address under the Act’s definitions.

Two other changes would impact users on the receiving end. One would shorten from ten days to three the time limit for a sender to respond to a recipient’s opt-out request. “That’s one of the first complaints we heard when CAN-SPAM was enacted,” said Anne Mitchell, president and CEO of the Institute for Spam & Internet Public Policy (ISIPP). “People were not happy that senders would still be allowed to spam them for 10 days after they unsubscribed.”

Another would eliminate any potential hurdles a sender may put up to prevent a user from unsubscribing, such as requiring a password or a fee to unsubscribe. The proposed change would not allow a sender to ask for any information other than the user’s email address and opt-out preferences, or require the user to take any steps other than sending a reply email message or visiting a single Web page.

A final proposed change, defining the term “person,” is likely a legal nuance that is being addressed, but will not likely impact either senders or users, Mitchell said.

These proposed changes are based on the FTC’s experience enforcing the law, as well as from comments gathered earlier this year. The FTC began this stage of the comment-gathering process on Thursday, and will continue to accept public comments by mail or online until June 27.

“The FTC has been very responsive to comments so far. Anyone who doesn’t like the way the FTC is doing things needs to make their concerns known,” Mitchell said.

Other changes that the public have asked for, which the FTC has not yet proposed to clarify in the law, include the definition of “transactional or relationship message;” a decision on how CAN-SPAM applies to practices like “forward-to-a-friend” campaigns; and the designation of additional “aggravated violations” under the Act.

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