Reviewing the CAN-SPAM Act

Hard to believe it was only two years ago the FTC held a three-day Spam Forum in Washington, D.C., to gather expert input and opinion to prepare for the legislation that become the CAN-SPAM Act of 2003. I was honored and privileged to be invited to speak at that watershed event (two other ClickZ email columnists also spoke).

By mid-December, the FTC must submit a report to Congress on CAN-SPAM’s effectiveness and enforcement. As part of the information-gathering process, the agency has again invited people close to the issue to participate in a series of phone conferences this month to discuss trends in email and spam. And again, I’m gratified to have been invited to participate in the process.

If you were on the call, what would you say?

Let me know your thoughts so I can convey them on the call this coming Tuesday, July 19. The feedback I’ve gotten so far from email marketers and legal eagles in the spam space is overwhelmingly positive. Here’s what I’m hearing.

Enforcement

Trevor Hughes, executive director of the Email Service Provider Coalition, put it best when he said, “The CAN-SPAM Act will not reduce spam, ever, if we don’t see spammers on the six o’clock news coming out of a courthouse with a raincoat over their heads, being rushed away in a dark van.”

CAN-SPAM didn’t stop spam by making it illegal, and nobody claimed it would. Murder’s illegal, too. Enforcement is the deterrent. “Has CAN-SPAM been successful in putting tools in the hands of law enforcement?” asked Anne Mitchell, attorney and founder of The Institute for Spam and Internet Public Policy (ISIPP). “Absolutely. Some have wielded it quite well.”

The marketers and attorneys I’ve spoken with are unanimous in agreeing more money and resources must be allocated to enforcing the law. “More funding!” echoes Bigfoot’s Jordan Cohen. “More money!” said the Direct Marketing Association’s (DMA’s) Jerry Cerasale.

Yes, the FTC has brought a number of cases against spammers. So have all the major ISPs. “We think the FTC should ask Congress for funding for cases, and compliance specifically,” said Hughes.

Mitchell, who helped craft the Act’s vendor liability section, goes a step further. “I’d like to see the constellation of [enforcement] agencies broadened. It’s one of the strongest tools in CAN-SPAM, and having denied the attorneys general from using it is ludicrous,” she asserted.

The Business Perspective

You can’t play by the rules if there aren’t any. The very fact a federal spam law exists is a boon to the marketing community. “What’s good about the law is it’s created awareness on the part of legitimate marketers and businesses as to what spam is. It deterred legitimate business from doing things that were on the edge, things we probably wouldn’t have done, but they were legal. That’s really positive,” said SubscriberMail CEO Jordan Ayan.

Cerasale applauds the atmosphere of trust the law has helped foster between marketers and consumers. “Consumers are now aware that there’s opt-out. I think that’s been a huge success.” He’d like to see more consumer education on the issue, however, which he believes would be more effective coming from the Feds than from marketers.

The Act has boosted consumer confidence in the unsubscribe process, agrees Hughes, and equally important is the clear disclosure of who is sending a message and where it’s being sent from. “These are small but important steps, and the industry has embraced them. They’re commonsensical. We have a national platform from which business can act in a predictable, manageable way.”

Everyone agrees the crazy quilt of local and state laws that preceded CAN-SPAM was a disaster.

Room for Improvement

Although everyone I’ve spoken with recently is pretty darn ecstatic CAN-SPAM exists — as well as fundamentally happy with the law — there are changes they’d like to see.

Topping the DMA’s list, according to Cerasale, are fines. “The fines for just technical violations [e.g., not keeping lists clean or honoring unsubscribes in a timely manner] are way too high,” he complained. “The fines are so prohibitive, it’s almost unconscionable.”

The ESPC and Bigfoot have raised adding a five-year-long “sunset provision” to opt-outs, as is the case with the FTC’s do-not-call registry. “Individuals change email addresses regularly, and marketers incur costs associated with ever-growing email address suppression files.”

Messing with a good thing is what worries Ayan most. “My hope is they won’t go into anything more Draconian that will hurt marketers but not necessarily control spam.”

The ESPC says what’s needed is preemption flowing to any state law that tries to regulate commercial email, as is currently the case in Utah and Michigan. “Someone has to get sued or sue in those states to say, ‘Hey, you’re preempted.’ That’s a messy, unfortunate process,” lamented Hughes.

Rulemaking Continues

The FTC must still issue recommendations for additional CAN-SPAM rulemaking covering legally unresolved issues, such as forward-to-a-friend; definition of the sender in the case of multiparty and co-branded email; and definition of the primary purpose of certain email message types. All important stuff, but parallel to the purpose of the FTC’s series of calls this month on the Act as a whole.

Please bear that in mind when you send me your thoughts. I hope you’ll take advantage of this opportunity our readers have to be heard where it really counts. And remember — I need to hear from you before Tuesday morning.

Want more email marketing information? ClickZ E-Mail Reference is an archive of all our email columns, organized by topic.

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