SPAM: New US Federal SPAM laws will CHANGE eMAIL MARKETING, for ALL Companies
Added : (
Sun Nov 30 2003
November 21, 2003, Washington DC - The House of Representatives passed the Senate Bill S877, with Amendments. Dubbed as the CAN-SPAM Bill, its formal title is "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003."
The congressional findings point to the facts that email is relied upon by millions of Americans, and that SPAM has grown to over 50% of all email, up from 7% in 2001. They go on to cite that there are costs associated with SPAM and deleting it may cause normal email to be discarded.
The 'meat' of the problem is that Spammers disguise who they are, use misleading subject lines, send vulgar and pornographic material and they don't let you Opt-Out from receiving any more unwanted emails. Because of this abuse, "there is a substantial government interest in regulating commercial electronic mail on a nationwide basis." Section 2(b)(1) Senate Bill 877.
The CAN-SPAM Bill has 17 definitions of terms relating to the sending/receiving of email, and the enforcement of this Act. An important definition is "Affirmative Confirmation," the formal term for Opting In. It states that the recipient must "expressly consent to receive the message... in response to a clear and conspicuous request… or at the recipient's own initiative." This puts the common practice of the Negative Opt-In (not unchecking the box that says you want SPAM) in question.
The CAN-SPAM definition of the "Commercial Electronic Mail Message" is important. It is described as a commercial advertisement or promotion of a product or service, including the content of a web site operated for commercial purposes. It notably EXCLUDES "Transactional or Relationship" emails that are sent to facilitate, complete or confirm a commercial transaction. This also EXCLUDES account statements, change of status, product updates and upgrades, warranty information, safety or security information, subscriptions, memberships and other similar commercial relationships.
What is the penalty? For the passive Spammer who has only disguised 2 or more domain names and used 5 or more fake email addresses, it’s 1 year in jail, plus fines. If the Spammer used over 20 fake email addresses, or sent out more than 2,500 SPAM emails in a day, the penalty jumps to 3 years in jail, plus fines. If the Spammer was convicted of Spamming before, or if they committed another felony, they are looking at 5 years in jail, plus fines. The Spammers also stand to lose any personal or real property associated with the act of Spamming.
To avoid Spamming, here are the rules. A commercial email:
MUST NOT disguise the mail header (the digital path which it took to get to the recipient).
MUST NOT use a false or misleading "From" line.
MUST NOT use a deceptive "Subject" line.
MUST include a "clear and conspicuous identification that the message is an Advertisement or Solicitation."
MUST include a "valid physical postal address of the sender."
MUST include a "clear and conspicuous notice" that lets the recipient Opt-Out.
MUST include a functioning return address or automated way to Opt-Out. The Opt-Out mechanism must work for 30 days after the email was sent, and the sender has 10 days to remove someone that asks to be removed.
If a Spammer "harvests" (collects) email addresses off the Internet, or uses a computer program to randomly generate them, these are considered "Aggravated Violations" which can triple the fines. In the case of State-enforced civil actions, the statutory fines can increase from $250 to $750 per Spammed email address, with a cap increasing from $2,000,000 to $6,000,000, plus attorney fees.
The CAN-SPAM Act supercedes all existing State Spam laws, EXCEPT for the State laws that pertain to falsifying email addresses. Furthermore, the Federal government wants to be notified by any State that initiates a Spam lawsuit, and they reserve the right to join in and move the case to a regional US District Court.
On the horizon are a few interesting additions to the CAN-SPAM Act:
The Commission has 6 months to deliver a report on creating a DO NOT EMAIL REGISTRY, with implementation sometime after 9 months. Similar to the Do Not Call Registry for phone solicitation, this would remove individuals from receiving all unsolicited commercial emails.
Within 9 months, the Commission must deliver a report on implementing a Bounty on Spammers. The CAN-SPAM Act specifically requests "procedures for the Commission to grant a reward of not less than 20 percent of the total civil penalty collected.…"
Within 18 months, the Commission must deliver a report on a plan for the "identifying codes" that must be used in the "subject line" that let the recipient know that it’s a commercial email. For example, ADV in the subject line would indicate that the email is an advertisement.
Finally, the Federal Communication Commission has 270 days to deliver the rules on how all of this applies to Spam received over wireless devices, which predominately includes cell phones.
After the CAN-SPAM Act is signed into law by the President, it is scheduled to take effect on January 1, 2004. A copy of the Senate Bill 877, as amended by the House of Representatives, may be found at http://www.iMarketingStrategy.com/CAN-SPAM-BILL.htm. While the Commission acknowledges that this legislation will not totally resolve the Spam issue, it is a BIG step in the right direction.
Related Story: read a how the CAN-SPAM Bill might effect MILLIONS of existing email addresses obtained with a "Negative Opt-In" at http://www.iMarketingStrategy.com/SPAM-OPT-IN.html.
White Paper: read a 32 page white paper on Email Marketing from A to Z at http://www.imarketingstrategy.com/email/index2.htm
iMarketingStrategy.com builds and deploys integrated marketing strategies to increase web traffic, increase average order value, increase conversion rates, increase purchase frequency, increase customer loyalty and increase customer life. Our recommendations include the integration of multiple marketing channels (direct marketing, direct sales, call center and customer service, etc.) with 18 Internet Marketing channels. The net result from this combined strategy dramatically increases incremental revenue and reduces acquisition costs.
If you are interested in building a LEGAL and EFFECTIVE email strategy, contact the consultants at iMarketing Strategy to discuss your options. Contact Brent J. Dreyer, bdreyer@iMarketingStrategy.com, Web site: www.iMarketingStrategy.com Copyright 2003 - Brent J. Dreyer, Not to be reproduced or published without permission.
Brent J. Dreyer
press release for free.