What Is Spam? Question Delays Latest Can-Spam Rule
by Broderick Perkins
Putting the lid on the final CAN-SPAM rule is proving as tough as ridding the nation of spam. Responding to complaints that the current law's definition of spam is too vague, the Federal Trade Commission is bound by federal rules that allow for public hearings on the matter and that's pushing the final rule's effective date from February 18 to March 28 this year. The "Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act," was effective January 1, 2004 to control electronic junk mail known as spam. Spam, generally, is a sales pitch made by email. It is also known as unsolicited commercial email or UCE. The vast majority of email today is spam. It clogs email boxes and costs billions a year to manage, in lost productivity, filtering software and in related fraud and deception expenses. Mortgage and real estate industry spam is among the most despised forms of spam, according to a Harris Poll that found mortgage spam was second only to pornographic spam in raising the ire of computer users. CAN-SPAM prohibits spam senders from disguising their identity, say, by using a false return address or misleading subject lines. It also prohibits senders from harvesting addresses from Web sites and requires spam to include a mechanism that allows recipients to opt out of receiving future electronic irritants. Violators can be fined millions of dollars and face imprisonment, but the law has been tough to enforce without a Do Not Spam Registry -- something the Feds say isn't in the cards. The Feds have taken action against a host of spammers and spamming rings, but today's spam is much more than a year ago when the law was enacted. CAN-SPAM also includes a provision that requires the FTC to issue regulations "defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message." In English, that means the FTC must define spam for law enforcement purposes. What the FTC has come up with will likely leave some confusion, but it does make clear that purely informational messages, such as an electronic newsletters, -- without advertisements -- billing and order statements and trade group and employment related mailings likely won't be in violation of CAN-SPAM, so long as the header and sender's information is not deceptive. The proposed rules attempt to distinguish between "transactional/relationship" messages and "commercial" email. Generally, transactional email stems from existing relationships especially purchases that already have been completed, while commercial messages solicit for goods or services. Confirming a purchase, billing statements, shipping information and subscription, membership or account status and employment relationship related email, would be considered transactional missives and free from CAN-SPAM rules except, again, for the accuracy requirement. On the other hand, email that is purely advertisement, marketing, promotional or otherwise solicitous must adhere to the letter of the CAN-SPAM law. But what about hybrid email containing both commercial and transactional information -- a billing statement with an ad for related products or services, for example? There's the rub. The FTC says: Email containing both commercial content and transactional or relationship content will be deemed commercial if either the recipient reasonably interprets the subject line of the e-mail as commercial email or the email's transactional or relationship content is not substantial or does not appear at the top of the body of the message. If the email contains commercial content and content that is neither commercial nor transactional or relationship-based, the email will be considered commercial if a recipient reasonably interprets the subject line of the email or the body of the message as indicating the primary purpose of the message is commercial. Playing a role in the interpretation includes placement of commercial content, the proportion of the message dedicated to commercial content and the use of color, images and type faces to highlight commercial content. Still, any legal definition that allows for some level of interpretation will itself be open to interpretation. That's not all that's keeping the feds from sealing the CAN-SPAM act. It's also trying to determine if the 10 days marketers have to comply with consumers' opt-out requests is adequate and it's looking at how to address marketing messages that encourage consumers to forward email or provide friends' addresses to the solicitor. | 
