FTC to Widen Anti-Spam Efforts

NEW YORK — After a string of high-profile successes against fraudulent email marketers, the U.S. Federal Trade Commission is preparing to take its efforts to limit spam further.

The agency is looking into cracking down on enforcement on three new groups: senders of email with a misleading subject line, distributors of mail that lacks a valid unsubscribe option, and sellers of “millions” of email addresses on CD. A formal announcement on FTC action on the matter is expected within coming months.

By doing so, the federal agency will be broadening the scope of its efforts beyond targeting pushers of fraudulent offers — an area in which it’s had a considerable amount of success, recently bringing successful, multi-million dollar claims against a host of email marketers.

However, speaking on Tuesday at the ClickZ E-mail Strategies Conference here, FTC attorney Jennifer Mandigo Brennan told the audience that that the agency’s authority in the new areas remains tenuous, since the FTC’s jurisdiction extends only to false and misleading offers made to consumers. (ClickZ is a sister site of InternetNews.com.)

That’s because no federal legislation concerning spam exists. As a result, unwanted commercial email, while annoying, isn’t necessarily illegal under federal law and doesn’t fall within the mandate of the FTC Act, unless an email’s offer is deceptive or false. (Several bills now pending, including one now before the Senate, would empower the FTC to take greater responsibility in combating unwanted commercial email.)

Despite the lack of federal anti-spam law, Brennan told InternetNews.com that the agency is looking at ways to bring areas like misleading subject lines, invalid opt-out offers, and bulk email addresses on CD within the FTC’s realm of enforcement, as defined by the FTC Act.

One effort is expected to build on a recent survey by the FTC designed to study the pervasiveness of invalid opt-out procedures — that is, email that falsely promises to unsubscribe consumers, who show their intentions by clicking on an embedded hyperlink or replying with “remove” in the subject line. Last year, the FTC and several local law enforcement agencies attempted to document their success in unsubscribing from about 200 different unsolicited commercial emailings. Not surprisingly, the majority of the unsubscribe requests had been directed to a dead address, or otherwise went ignored.

Because the survey attests to deceptive claims of offering methods of opting-out of future mailings, the FTC could have the ammunition it needs to act against such offers.

“That’s probably the first area for law enforcement,” Brennan agreed.

Similarly, misleading subject lines also would seem to be within the FTC’s immediate grasp, since they “make a promise or offer that would seem valid to most reasonable consumers,” she said.

Sellers of millions of consumer email addresses on CD, however, present a somewhat more involved dilemma.

Putting a halt to the sale of the CDs, which are typically used by bulk mailers to build email lists, is likely to take place only if the CDs are marketed in such a way that sellers make false or deceptive claims.

For example, the FTC could act only if a CD seller misrepresents the quality of the email lists on the disc — such as by stating that they are valid addresses — or misrepresents the potential for profit by using it.

Pursuing such merchants simply because most of the CDs’ email addresses will wind up being used for unsolicited commercial mailings, or because marketers of the CDs often use unsolicited email themselves, however, is unlikely to occur, because such efforts currently lie outside of the agency’s mandate, Brennan said.

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