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Lesson #27
CAN-SPAM ACT OF
2003
WHAT YOU WILL LEARN
We discussed Spam in Lesson One of this
online course, setting out the Rules of Thumb to help
you avoid being accused of Spamming. In that lesson, we
noted that there were many sources for definitions and
rules regarding Spam. We noted that there were many
different laws in many different jurisdictions and many
different rules in the various "Acceptable Use Policies"
of Internet Service Providers. While that observation
still holds true, the Can-Spam Act of 2003, which became
law January 1, 2004, does simplify things somewhat for
Internet users in the United States (and for those who
send commercial e-mail into the United States). The
Can-Spam Act of 2003 is a Federal Law that supercedes
differing State laws in the United States. In this
Lesson, we will give an overview of the highlights of
this new law.
STARTING ON A HIGH
NOTE
It is encouraging for Affiliate Marketers
to note something stated at the very beginning of the
Can-Spam Act of 2003. The first section of the Act lists
the findings of the legislature that have led to passage
of the Act. The first of these findings is:
Electronic mail has become an extremely important and
popular means of communication, relied on by millions of
Americans on a daily basis for personal and commercial
purposes. Its low cost and global reach make it
extremely convenient and efficient and offers unique
opportunities for the development and growth of
frictionless commerce.
For those still skeptical about the opportunity for
online profit, take note. You can’t get more official
verification than a factual finding of the United States
Congress. The U.S. Congress has officially determined
that the Internet offers "...unique opportunities for
the development and growth of frictionless commerce."
The SFI Marketing Group is on the forefront of the
development and growth of these unique online
opportunities. With a little effort to learn the skills
and play by the rules, you can, through your involvement
with SFI, take part in this amazing growth of
"frictionless commerce."
All participants in this exciting new world of Internet
opportunity need to work to reduce and avoid the
devastating effects of Spam, however. So, let’s turn our
attention now to understanding the new law.
WARNING RE: LEGAL
TOPICS
First, there are two things you need to
keep in mind when reading articles on legal topics. You
need to know that the law that applies to any particular
situation is determined from an examination of many
different sources of laws...and additional laws
pertaining to how those sources interact with each other
and with particular fact patterns. Therefore, you should
consult an competent attorney in your jurisdiction to
learn the possible legal consequences of your particular
situation, before undertaking anything important or
risky, rather than relying on your reading of any
particular article.
I have often seen people get in red-faced arguments over
what the law is in a particular situation. Both insist
that they have read the law and understand the law, and
yet they arrive at different conclusions. Laws come from
many different sources. For example, some states in the
United States have already passed laws dealing with
Spam. Now the Federal Congress has also passed a law.
Within each state, there may be state agencies that are
charged with promulgating administrative rules to flesh
out the law passed by the state legislature. The federal
law also delegates rule-making authority to the Federal
Trade Commission and preserves the authority of other
agencies in certain overlapping areas. You also have the
courts, both state and federal, which interpret again
what these various laws and agency promulgations mean
and to make sure the laws are constitutional.
Governments are not perfect, and there are often
inconsistencies in these various promulgations and
interpretations. Quite often, people who argue over what
the law is have simply each read different laws from
different sources. Usually both have failed to take into
account which of those sources have control over the
others in which situations.
The second thing to keep in mind is that laws also vary
in their application depending on the particular factual
situations involved. No two situations are exactly
alike. There are many factors that must be assessed
before an interpretation of the law can be applied to
any particular situation. It is certainly a good thing
for you to read articles and keep yourself abreast of
new legal topics, but you must keep in mind that reading
articles is not a substitute for competent legal advice
from an attorney who is familiar with the law as applied
in your particular jurisdiction and is well apprised of
your particular factual situation. Thus, nothing in this
article or anywhere in this course is intended to be, or
to be a substitute for, legal advice.
SUMMARY OF THE
FINDINGS IN THE CAN-SPAM ACT
Legislatures like to have good reasons to
pass new laws. They often express these reasons in the
"Findings" that appear at the beginning of the law. The
reasons given for passing the Can-Spam Act may be
summarized as follows:
E-mail is an extremely important and cost efficient form
of communication used by millions of Americans. The
convenience and efficiency of e-mail is being threatened
by the rapidly growing volume of Spam, which is
currently estimated to account for over half of all
e-mail traffic. The necessity to store, access, review,
sort, and discard Spam is costly in both time and money.
Spam also increases the likelihood that wanted e-mail
will be lost, overlooked, or accidentally discarded
amidst the large volume of Spam that most Internet users
receive daily. Many of the Spam messages are deceptive,
fraudulent, vulgar, pornographic, or otherwise
offensive. Spam is costly to ISPs and educational
institutions who handle large volumes of e-mail traffic.
Many spammers disguise the source of the Spam and
include misleading subject lines to induce the
recipients to view the mail. Many spammers do not
provide or honor opt-out requests. Many spammers farm
e-mail addresses from Websites and online services. The
laws enacted by the various States are inconsistent,
confusing, and have not been effective. The problems
associated with the rapid growth and abuse of
unsolicited commercial electronic mail cannot be solved
by Federal legislation alone. The development and
adoption of technological approaches and the pursuit of
cooperative efforts with other countries will be
necessary as well.
WHAT IS PROHIBITED
Having made these findings, the Act then
proceeds to prohibit the things found to be most
harmful. The following list paraphrases what is
prohibited by the Act. The Act uses different wording
and has specific definitions for the words used in the
Act. The following is intended only to give you a
general conceptual idea of what the act intends to
prohibit:
• Accessing another
computer without authorization and sending bulk
commercial e-mail from that computer.
• Using another computer to relay bulk commercial
e-mail with the intent to hide the source of the
e-mail.
• Falsifying headers in bulk commercial e-mail.
• Registering with a false identity for five or more
e-mail or access accounts or two or more domain names
and sending bulk commercial e-mail from any
combination of those accounts.
• Falsely acquiring five or more IP addresses and
sending bulk commercial e-mail with those IP address.
• Conspiring to do any of the above.
Violators can be punished
with a substantial fine and up to 5 years in prison
under certain circumstances. Your property, equipment,
and software can also be confiscated under certain
circumstances. The Act also prohibits:
• Sending any
commercial e-mail (bulk or not) that does not contain
an opt-out mechanism that is functioning for at least
30 days after the message is sent (barring
uncontrollable technical problems).
• Sending any e-mail more than 10 days after someone
has opted not to receive e-mail from you. Importantly,
the act also prohibits passing an opted-out e-mail
address on to anyone else who will send e-mail to the
address. This includes selling or even giving away
e-mail lists that contain the e-mail addresses of
those who have opted-out.
This last provision is significant in
that the practice among many over-aggressive marketers
has been to stop sending mail to those who opt-out of
their list, but then to turn around and sell that
address to others. It is now a federal offense to do so!
VERY IMPORTANTLY, all Internet Marketers should note
that the new law prohibits sending any commercial e-mail
(bulk or not) to anyone unless the message provides:
(I) clear and conspicuous
identification that the message is an advertisement or
solicitation;
(II) clear and conspicuous notice of the option...to
decline to receive further commercial electronic mail
messages from the sender; and
(III) a valid physical postal address of the sender.
This provision, however, does not
apply when someone has given prior affirmative consent
to receive the message (such as opt-in newsletters)it
is still good practice to include these things anyway.
Harvesting e-mail addresses from
Websites in contradiction of the stated Privacy Policy
of the Website or knowingly using such addresses is also
prohibited. In other words, you can’t have a Privacy
Policy stating that the operator of a Website or online
service will not give, sell, or otherwise transfer
addresses maintained by such Website or online service
to any other party for the purposes of initiating, or
enabling others to initiate, electronic mail
messages...and then do so anyway. To do so now is to
commit a federal crime.
"Dictionary Attacks"–i.e. randomly
generating possible user names to combine with known
domain names in a shotgun approach to spammingis also
made unlawful by the Can-Spam Act.
There are also provisions in the Act
setting additional requirements on sexually explicit
e-mail.
Further included in the Act are
provisions outlawing businesses from profiting from
Spam. This is an important provision in the Affiliate
Marketing arena. Businesses who market their goods
through affiliate programs and the affiliate program
operators must now take active steps to prevent the
affiliates involved from using Spam, directly or
indirectly. In order to comply with the Act and avoid
criminal charges against them, such businesses and
affiliate program operators must also take active steps
to detect any use of Spam by their affiliates and to
report such violations to the FTC.
The Act also provides for studies to
implement a future "Do-Not -E-mail" list and for rewards
to be given to those who help identify violators of the
Act.
DO NOT CONFUSE THE
CAN-SPAM ACT WITH ISP RULES
The main purpose of the Can-Spam Act
is to outlaw Spam and provide criminal and civil
enforcement measures. The Can-Spam Act does not prevent
Internet Service Providers from having their own policy
of declining to transmit, route, relay, handle, or store
certain types of electronic mail messages. Thus, even
though an e-mail may be in full compliance with the
Can-Spam Act, there is nothing in the Act to prevent an
ISP from refusing to deliver the e-mail anyway.
Remember that the Can-Spam Act is
designed to punish criminals by fining them thousands of
dollars and putting them in jail. However inconvenient
it may be to have your Internet account terminated,
going to jail for up to five years is a lot worse! Thus,
it follows that this type of law will be much less
strict than contractual agreements and Acceptable Use
Policies which are usually only enforced by refusing to
deliver your e-mail or denying you access through that
service.
For example, the SFI Marketing Group
Spam Policy is more restrictive than the Can-Spam Act.
This has been a necessity in order to keep SFI on the
"White Hat" lists of various ISPs who handle large
volumes of SFI e-mail (and who also have more strict
policies than the Act). The Can-Spam Act, being less
strict than these policies, does not change what is
prohibited by the policies. SFI prohibits sending any
e-mail containing an SFI link to any lead, with which
you do not have a previously existing relationship,
until you obtain their consent to do so. Even though
some such e-mails (for example, a single e-mail sent to
only one recipient ) may not be a violation of the
Can-Spam Act, the e-mail may still violate SFI’s Spam
Policy and thus still be a lawful basis to terminate
your SFI account. The fact that the e-mail does not
violate the Can-Spam Act is not a defense in this
situation.
(SFI, of course, supports, and works
diligently to protect, the rights of Affiliate Marketers
to send commercial e-mail under reasonable
circumstances. Reasonable e-mail should not be
arbitrarily rejected by over-zealous ISPs. Marketers
have rights too. That is a subject for another lesson,
however. The point here is that the Can-Spam Act does
not say what you CAN doit only says what you CAN’T do.
CONCLUSION
Only send commercial e-mail to those who
have specifically, with confirmation, opted-in to your
newsletter or mailing list. That is, when they sign up
with an e-mail address, you should send a confirmation
request to that e-mail address, and they must then click
on the link in the e-mail to confirm before inclusion in
your list. (This is, among other things, to prevent
someone from signing up someone else’s e-mail address.)
When you send e-mail, you should either send it from an
e-mail account to which the recipient can directly reply
or you must include an opt-out link in the e-mail. You
should include your physical post office address in the
e-mail. You should accurately and honestly identify the
subject of the e-mail in the subject header. Certainly
do not attempt to trick or mislead anyone in any way.
There is much more to the Can-Spam Act than has been
mentioned here. An exhaustive analysis of the Act is
beyond the scope of this lesson. You can read the Act in
its entirety (in Adobe PDF format) at
http://profitpropulsion.com/articles/can-Spam.pdf .
WHAT’S COMING NEXT
Stay tuned to upcoming lessons in the
Internet Income Course for detailed discussions of
timely and important topics in Internet Marketing.
by George Little
Copyright (year) Panhandle On-Line, Inc.
License granted to Carson Services, Inc. for
distribution to SFI affiliates. No part of this work may
be republished, redistributed, or sold without written
permission of the author.
For more information on the Internet Income
Course and other works and courses by George Little, see
www.profitpropulsion.com.
For Web Hosting services specially designed for
SFI affiliates, see www.profitpropulsion.com.
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