The Can
Spam Act of 2003 was not written to stop SPAM it was written
to regulate email marketing and SPAM. The Act has often been
called an act that is “Controlling the Assault of
Non-Solicited Pornography and Marketing Act of 2003.” This
is an apt description as the main focus of the Act was to
regulate SPAM coming from pornographic or clearly commercial
means.
https://www.lynxtrack.com/signup.php
The Act is
broad enough to also affect companies that send out bulk
mail to consumers who have not opted in to receive email
from them. The affect comes in the form of regulation. “The
act requires that the marketers include a legitimate "real"
physical address, a functioning e-mail address, an opt-out
mechanism and a proper subject line that accurately
indicates what the message is about.”
Most
people agree that the amount of spam in in-boxes nationwide
has not decreased. Some say the act just creates obstacles
for legitimate e-mail marketers but is ineffective at
stopping real spammers, who prove difficult to track.
However, the act has given responsible businesses a way to
distinguish themselves from spammers, letting them expand
their databases legally, avoid lawsuits and target messages
to interested customers. An overview of the first year
follows.
The good
news for marketing departments is that CAN-SPAM makes it
legal to send unsolicited commercial e-mail to potential
customers provided the sender complies with the act’s
requirements. However according to MX Logic almost 97% of
SPAM does not comply with the Federal Act. The act also
preempts state laws regulating spam. CAN-SPAM gives no
private right of action. Individual e-mail recipients are
not entitled to bring lawsuits to enforce provisions of the
act. The enforcers are the Federal Trade Commission, state
attorneys general and ISPs. Criminal penalties involve
substantial fines and up to five years imprisonment. Civil
penalties include injunctive relief, $250 per violation
(each e-mail sent that does not comply is a violation), up
to $2 million for state actions and $1 million for ISP
actions and attorneys fees.
Federal
criminal prosecutions have involved clear cases of spammers
abusing consumers. Several prosecutions have been initiated
under CAN-SPAM by state attorneys general. Most cases have
been brought by ISPs, such as Microsoft, EarthLink, AOL and
Yahoo.
How to
comply. CAN-SPAM applies to commercial electronic
communications where the primary purpose is commercial
advertisement or promotion. “Transactional or relationship
messages” sent to complete or confirm a transaction (such as
time of delivery, etc.) are for all practical purposes
excluded. Transactional or relationship messages also mean
those sent to a recipient with whom the business has an
ongoing relationship and include warranty or recall
information, safety or security information, subscriptions,
memberships or account information.
Recommendations-
Keep
accurate records of suppression lists with the names, e-mail
addresses and opt-out dates of all unsubscribers and treat
this list as confidential information. Have an e-mail policy
that sets forth the provisions of the act and lets only
employees trained in this policy send commercial e-mails.
The act allows for mitigation of penalties where the
business has established commercially reasonable practices
to prevent violations. Begin Recognizing that it is tough to
meet the 10-day limit, ensure you have an employee who is
responsible for deleting the names of those who opt out and
for putting them on the suppression list. When this employee
is absent, ensure someone else performs the task. The time
limit is 10 days, not 10 business days. Evaluate your
database and verify that no addresses are the result of
“harvesting.” These recommendations apply only to e-mails to
U.S. recipients. Different rules exist in Canada and the
European Union countries.
http://www.tmcnet.com/usubmit/2005/Jan/1104242.htm
http://www.clickz.com/experts/brand/buzz/print.php/3458891
http://www.ebcvg.com/articles.php?id=491
http://www.technologyreview.com/articles/05/01/ap/ap_2011705.asp
http://www.smallbusinesscomputing.com/news/article.php/3458401
David Fishman
dfishman@wrpmedia.com
