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Experts cannot seem to agree on what effect, if any, the new federal anti-spam law will have on unsolicited e-mails flooding corporate and personal in boxes. But in several ways, the new legislation may ease the regulatory burden on legitimate e-mail advertisers. Congress passed the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act by a wide margin early last month, after more than six years of failed efforts to enact a federal anti-spam law. President George W. Bush signed the law Dec. 16, and it went into effect Jan. 1. The multipart set of rules dictates how advertisers may pitch customers they already know and those they do not over the Internet. Fraudulent e-mails are punishable with jail time, as are unlabeled or falsely labeled “sexually oriented” e-mails. The bill also gives the Federal Trade Commission enhanced enforcement capabilities and the authority to set up a “do not e-mail” list, similar to the agency’s popular national Do Not Call Registry aimed at telemarketers. Its supporters say that by creating a nationwide standard, the first-ever federal anti-spam legislation will help stem the tide of unwelcome e-mail offers from, among others, deposed Nigerian dictators, pornographers, and peddlers of cheap mortgages, diet pills and Viagra. Opponents counter that the law is more lenient than many of the state statutes it is designed to pre-empt, and will permit spam previously banned by those laws. At least 34 states have passed anti-spam laws, several of which are much tougher than the new federal law. Several states provide for a private cause of action against spammers, others require that spam be explicitly labeled in the topic line, and some even mandate an opt-in standard banning unsolicited commercial e-mail without a prior business relationship. New York, for example, does not have a statute specifically aimed at spam, although Attorney General Eliot Spitzer has gone after spammers under state fraud statutes. Two days after CAN-SPAM became law, Spitzer announced a suit against a New York City-based marketing company for sending consumers more than 1 billion junk e-mails each week. The suit seeks to enjoin the company from sending spam that falsifies sender identities, subject matter heading, and the e-mail’s transmission paths. A new state anti-spam statute may have been the impetus for the federal regulation. In September, California passed the toughest law in the country, banning unsolicited commercial e-mails sent either to or from California residents. The California law was scheduled to go into effect on Jan. 1, the same day as the federal law that has effectively pre-empted it. Terri Seligman, an attorney for legitimate advertisers, says the law will actually not have much effect on their e-mail marketing practices. “Most of my clients were already doing much of what is required by the statute,” says Seligman, a partner at Loeb & Loeb in New York. “Legitimate marketers were never falsifying information or sending porn.” Nevertheless, for several reasons businesses are pleased with the new legislation, she says. “The big victory was getting a nationwide standard,” Seligman says. She adds that advertisers were also relieved that they will not have to grapple with the now-pre-empted California legislation. “I had clients who were going to take all California and unidentified e-mails off their mailing list,” Seligman says. But the bill is not all good news for advertisers, she says. “Advertisers are unhappy that the new law requires the FTC to study and consider the ‘do not e-mail’ registry,” she says, adding that all such a list would do is impede legitimate users of e-mail, since they are the only ones who would adhere to the rules. In addition to creating a nationwide standard, the CAN-SPAM Act includes a number of other provisions that should allow e-mail marketers more breathing room. The law: • Imposes no labeling requirement on nonpornographic e-mail, unlike about 15 states that required “ADV” or the equivalent on all unsolicited commercial e-mail. A couple of states even required a label of ADV-ADULT for e-mails aimed at adults, such as advertisements for cheap mortgages. • Bans private suits against spammers. However, Internet service providers, who have been at the forefront of the legal battle against spammers, as well as regulators may still pursue spammers in court. • Forces spammers to let recipients unsubscribe from their list, although it does not require them to make the option obvious or easy. • Exempts political, religious, and nonprofit groups from its regulatory reach. For the most part, the ISPs, such as Yahoo! and AOL, have come out in support of the new law, as has the Direct Marketing Association. Opponents Voice Concerns But the CAN-SPAM Act has encountered opposition from an unexpected corner. In a speech last summer, Federal Trade Commission Chairman Timothy Muris said the statute “could actually be harmful” to the agency’s efforts to stem the spam tide. Under the new law, the FTC would have to prove that the seller who hires a spammer to advertise a product “knew or consciously avoided knowing, that the third-party mailer intended to violate the law,” Muris noted. By requiring proof of both the seller’s and spammer’s level of knowledge, the new law “poses a serious hurdle that we do not have to meet to obtain an injunction under our current jurisdiction,” he said. The National Association of Attorneys General has also criticized the act. In a November letter to Congress the group “respectfully request[ed] that you not move forward.” “The bill creates so many loopholes, exceptions, and high standards of proof, that it provides minimal consumer protections and creates too many burdens for effective enforcement,” the group said. Tamara Loomis is a reporter at the New York Law Journal, the American Lawyer Media daily newspaper where this article first appeared.

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