Adhering to the CAN-SPAM Act
There are laws protecting consumers from all kinds of corrupt business practices, and spam is no exception. While this law will not stop spam, it does make most spam illegal and ultimately less attractive to spammers. The law is specific about requirements to send commercial email and empowers the federal government to enforce the law. The penalties can include a substantive fine and/or imprisonment for up to five years. The law also includes a private right of action clause for Internet Service Providers (but not for individuals) to sue a sender regarding the receipt of prohibited messages.
While I am not an attorney and therefore cannot provide legal advice, I feel it is important to provide you with Constant Contact’s interpretation of how the federal law may affect you. This is a summary of some provisions of the law and is not a full analysis of how it may apply to you. If you believe you may be affected, you should consult with your own attorney.
The CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing) Act went into effect January 1, 2004, and it preempts all state laws. This means it overrides all individual state spam laws (39 at last count). The great news is that now you only have to comply with one law—the federal law.
If you use an Email Service Provider such as Constant Contact, you are already in compliance with much of the federal law, but there are a few other things you need to know. Constant Contact’s terms and conditions require that your list is permission-based, which means that you already comply with the unsolicited email requirements stated in the law:
• Your email header information is not misleading because it is set for you by Constant Contact. 
Figure 4.3 Using Constant Contact helps keep your emails compliant.
• Your email’s From address is verified and already accurately identifies you as the sender.
• Constant Contact automatically includes the ability for your contacts to opt-out of future email communications.
• Constant Contact automatically processes unsubscribes from your email communications.
Constant Contact even asks our customers to confirm the lists they upload comply with our policy as shown in Figure 4.3.
Even if you use an Email Service Provider that helps keep you in compliance, there are a few more things you need to be aware of going forward.
• Make sure that your email campaign’s “Subject” line is straightforward, not misleading. The days of using cute phrases or tricks to boost open rates are over. The recent Adteractive settlement reinforces the FTC’s commitment to enforce this requirement.
• If you aren’t already doing so, any unsubscribe requests that come to you via a reply to your email must be honored within ten days of the request.
• You need to include a physical address in your email campaigns. Constant Contact requires that you add a physical address before you can schedule a campaign: make sure that this address is a valid physical postal address for your organization.
In May 2008, the Federal Trade Commission (FTC) released its Statement of Basis and Purpose and Final Discretionary Rule (“Final Rule”) on the CAN-SPAM ACT. This statement contains four new rules and also contains some clarifications and guidance to the text of the original act in the form of the Statement of Basis and Purpose (SBP).
Note also that since the rules are new, it’s likely that the interpretations will evolve over time as the industry acquires more experience with implementations.
If you are adhering to your ESP’s current terms and conditions, making sure that your messages contain a valid company name and physical address, and not working with affiliates or third-party advertisers, there are probably only a few things you need to consider:
• You should review the From address and From name you are using in your emails. At least one and preferably both of these should be clearly recognizable as belonging to your organization.
• Make sure you are not “procuring” the forwarding of your campaigns by offering any kind of incentive (e.g., coupons, discounts, T-shirts) to your recipients. Forwarded messages that contain incentives to forward will be noncompliant under CAN-SPAM because they will be considered commercial messages and will not contain the required opt-out mechanism.
• There were some modifications to the definition of “sender” in order to clarify the required CAN-SPAM compliance when there are multiple advertisers in a single message. In general, it clarifies that the From address visible to your recipients should be clearly recognizable as belonging to your organization. In addition, if you work with affiliates or you have third-party advertisements in your email campaigns, you should review the new rule provisions relating to the definition of sender as it relates to multi-sender emails.
• The opt-out mechanism must not be complicated: “an email recipient cannot be required to pay a fee, provide information other than his or her email address and opt-out preferences, or take any steps other than sending a reply email message or visiting a single Internet web page to opt out of receiving future email from a sender.” (The Constant Contact opt-out mechanism is compliant with the new guidelines.)
• Commercial mailers may now use a valid P.O. box as the required physical postal address in their messages, as long as it is valid and meets USPS registration guidelines.
• The term “person” has been defined as “an individual, group, unincorporated association, limited or general partnership, corporation, or other business entity.” This is intended to clarify that CAN-SPAM’s obligations are not limited to natural persons.
If you are a single organization sending email on your own behalf and do not publish ads from third parties in your emails, then the new rules will likely have little impact on you unless your opt-outs do not comply with the new stricter opt-out guidelines.
If you work with a third party (other than Constant Contact) that manages your opt-outs for you, you should consult with that company to make sure that its mechanism will comply with the new rule provisions.
The Final Rule also provides some additional guidance, the Statement of Basis and Purpose, on aspects of the Act that it does not explicitly cover. Although these items are not officially mandated, they give guidance on how the FTC is likely to interpret applicability and compliance, and in that context should be given careful consideration.
• The FTC clarifies that forward-to-a-friend mechanisms, which have generally been treated as exempt from CAN-SPAM because they are one-to-one messages from the original recipient to a friend, may in fact be subject to CAN-SPAM if the originator of the message “procures” the forwarding or if the forwarded message is stored in any way by the forwarding system.
• A message has been “procured” if “the seller offers money, coupons, discounts, awards, additional entries in a sweep-stakes, or the like in exchange for forwarding a message.”
• Because most forward-to-a-friend mechanisms are not set up to include opt-out links that would make the message CAN-SPAM compliant and enable the final recipient to opt-out of future messages from the original sender, this means that any forwarded message whose forwarding has been “procured” would make the original sender noncompliant under CAN-SPAM.
• To ensure you’re not caught by this clarification, you should make sure that you’re not offering any incentives in the content of your email campaigns that encourage your recipients to forward them. For example, “forward to 10 friends and get a 10% off coupon,” or “get a free T-shirt” would likely classify your forwarded message as commercial and thus, subject to CAN-SPAM.
• There is fairly extensive guidance given on the definition of a “transactional or relationship message.” The FTC decided not to exempt entire classes of messages from CAN-SPAM, but rather requires they be considered on “a case-by-case basis depending on the specific content and context of such messages.” If all of your communications are already CAN-SPAM-compliant, then you don’t need to worry about these clarifications; if you do treat some of your communication as transactional, you probably want to look at this section in more detail to ensure that you’re not impacted by the clarifications.
• The FTC has decided not to alter the time limit (10 days) for honoring an opt-out request. In addition, it reaffirms that there is no time-out on an opt-out request, i.e., that it may only be overridden by a subsequent explicit opt-in request.
To read the federal law, you can visit www.ftc.gov/os/caselist/0723041/canspam.pdf.
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