by Teri Robnett
(published in Colorado Lifestyle Magazine, April 2004)

In December, President Bush signed the CAN-SPAM Act, which went into effect January 1, 2004. CAN-SPAM is the acronym for "Controlling the Assault of Non-Solicited Pornography and Marketing" and covers "commercial electronic mail messages."

What the law DOES do

• Requires opt-out language and sender's physical address in unsolicited commercial e-mail
• Requires a legitimate return e-mail address
• Allows businesses 10 days to stop sending commercial e-mail, but ONLY after a recipient has objected or opted out
• Prohibits deceptive headers, particularly who the message is from
• Prohibits misleading subject lines
• Requires warning labels on commercial e-mail containing sexually oriented material
• Preempts any and all state laws
• Increases potential fines from $100 to $250 per e-mail message sent
• Includes potential jail time
• Requires the FTC to investigate the potential for a Do-Not-Spam list

What the law DOESN'T do

• Make spam illegal
• Establish a Do-Not-Spam list
• Regulate spam from outside of the U.S.
• Prohibit businesses from sending e-mails the recipient didn't request
• Prohibit the purchase of e-mail lists
• Prohibit pornographic e-mail
• Has no private cause of action for individuals - enforcement is by the FTC, attorneys general, and Internet Service Providers

While legislation plays an important role in highlighting the seriousness of spamming, critics of the bill say it will be challenging to enforce, and the evidence supports that claim. "We've found that the vast majority of spam is untraceable, and that spammers are employing increasingly sophisticated means of covering their tracks," says Enrique Salem, CEO of Brightmail, Inc. Legislation adopted in 29 states, Japan and the European Union has done little to slow the spread of spam.

"Many of those responsible for sending spam are based outside the U.S. and are beyond the reach of the new law," says BBCnews.com. Spamming is a global problem, with e-mail being routed around the globe with wanton disregard for local regulations. Governments cannot impose regional laws on assailants outside their boundaries.

Some experts believe CAN-SPAM will actually bury us in even more electronic junk. "Now we have a green light for what would come to be called 'legal spam,'" said Vincent Schiavone of ePrivacy Group. By establishing official guidelines for what's permissible, "the federal law made unsolicited e-mail legal but no less unwanted."

Critics say the law may be opening the door for a tide of e-mail offers that may be more honest but just as annoying. "Basically it's a bill of rights for companies that want to send junk e-mail," said John Levine, a board member of the Coalition Against Unsolicited Commercial E-Mail.

"The majority of spam that drives people crazy is not coming from legitimate marketers," says Howard Beales, director of the FTC's Bureau of Consumer Protection, "and getting [illegitimate marketers] to comply is going to be just as difficult as it's always been."

Some critics of the law point to technology as the solution, though techniques developed so far have failed. Jonathan Spira, whose Basex Inc. analysis firm declared spam the "Product of the Year" for 2003, said spammers have an edge because they merely have to outsmart machines. By contrast, those building the machines have to not only outsmart spammers, they also must avoid blocking legitimate mail.

What businesses can do
As legitimate e-mail marketers, it's important that you comply with the law.

• Make sure that your e-mail campaign's "Subject" line is straightforward, not misleading. The days of using cute phrases or tricks to boost open rates are over.
• Be sure to use a legitimate reply e-mail address (who the message is from).
• Include instructions on how recipients can opt-out of your e-mail list. Any unsubscribe requests must be honored within 10 days of the request.
• You will now also need to include a physical address in your e-mail campaigns.
• Establish a privacy policy, post it on your web site, and stick to it!

What consumers can do
Ultimately, the solution to spam may involve neither law nor technology. Here are some tips:

• Put numbers in the middle of e-mail addresses to make them harder to guess (from Mary Youngblood at Earthlink, Inc.).
• Be cautious about giving out your e-mail address, especially online. Check a web site's privacy policy first.
• Use a separate address for online shopping, contests and newsgroup postings.
• Ask your e-mail service provider about spam-blocking. Make sure that you control the settings because the systems available now aren't perfect and can tag e-mail you want to receive as spam and block it.

To read the federal law, please visit: http://www.spamlaws.com/federal/108s877.html.

Teri Robnett is the Right Brain of Whole Brain Technologies, LLC, a woman-owned Colorado web development and e-marketing firm specializing in helping businesses get more from their Internet investment by integrating all the components necessary for a successful web site. For more information, visit www.wholebraintech.com.

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