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Media Lawyer Defends GRC’s Responsiveness On OPRA Complaints Dear Editor: The lead article on Feb. 16 about OPRA was informative ["As Courts Smile on OPRA Claims, Records Council Tackles Backlog," 175 N.J.L.J. 533]. In the past year, I have had considerable experience with the Government Records Council charged with the implementation of OPRA. My experiences, on behalf of two media clients, have been positive, although we have not won every case. I have always found, contrary to the criticisms discussed in your article, Executive Director Paul Dice and his staff to be responsive and procedurally cooperative. We have exchanged many phone calls without any undue delay. While there has been decisional delay, I attribute that to the failure to fund and staff adequately the GRC. Would I recommend filing access complaints with the GRC instead of the Superior Court? It depends, of course, on the precise situation of the client. In some instances the court might be preferable, but not always. Donald A. Robinson Newark Article Misstated Law On Suits vs. Spammers Under CAN-SPAM Act Dear Editor: Having been involved in the lobbying effort that led to the passage of the CAN-SPAM Act late last year and in advising clients on its scope in the intervening months, I was surprised to see so many inaccuracies in your Feb 2. article on the subject ["Spam is Still Lawful," 175 N.J.L.J. 380]. The errors and omissions are too numerous to address, so I will limit this letter to some of the more blatant. It appears throughout the article that the author, Jonathan Bick, may have read – and misinterpreted – a synopsis of the Act, rather than the Act itself. I can imagine no other explanation for the statement in the eighth paragraph that “people who receive spam may sue Internet service providers,” a conclusion Mr. Bick draws from his previous statement that the Act contains a private right of action “limited to Internet service providers.” Indeed, the private right of action is limited in Section 7(g) to ISPs, but that provision states that ISPs “may bring a civil action” against spammers for an injunction and damages, not that recipients of commercial e-mail may sue ISPs. (Later in the article, Mr. Bick correctly notes that there is a provision for “ISPs to sue spammers,” which hardly corrects the previous misstatement.) The other errors, while not as blatant or as obvious, are nevertheless important to those not thoroughly versed in the nuances of this complex law. The article gets off on the wrong foot by asserting that the Act applies only to “spammers,” a term that most people would apply to mass e-mailers. In fact, the prohibitions and requirements of the law apply to all “commercial e-mail,” even a single e-mail sent by Mr. Bick offering his services to a single spammer. Next, the article fails to note the important limitation in the Act’s crucial definition of “commercial” e-mail as an electronic message the “primary purpose” of which is the commercial advertisement of a product or service. Thus, for example, publishers of electronic newsletters containing advertising would appear to be exempt from its coverage. In addition, the article refers frequently to “unsolicited” e-mails when listing the requirements and prohibitions of the Act. With a couple of relatively minor exceptions for e-mails sent with the “affirmative consent” of the recipient, such as making inapplicable the requirement for identification of the message as an ad, the Act makes no distinction between “solicited” and “unsolicited” e-mail and never even uses these terms. The importance of this last point can be shown by referring to Mr. Bick’s statement at the end of the fourth paragraph that “[u]nsolicited e-mails must contain legitimate return e-mail addresses, as well as the sender’s postal address.” In fact, the Act requires in subsections 5(a)(3) and 5(a)(5) that all commercial e-mails, not just “unsolicited” commercial e-mails, must contain this information. And the latter requirement is not merely for a “postal address” but for a “physical postal address,” which most are interpreting as excluding post office box addresses. Perhaps the most counterintuitive and dangerously inaccurate assertion in the article (at the start of the fifth paragraph) is the statement that, “for recipients who have previously consented to receipt of unsolicited commercial e-mail, the Act has two additional requirements”: honest subject headings and compliance with a do-not-e-mail registry. Apart from the fact that neither the Act nor Mr. Bick defines the seemingly paradoxical notion of an unsolicited e-mail for which consent was given, the two supposedly “additional” requirements that he claims apply only where there is such consent in reality apply to all commercial e-mails. As to the first of these two requirements, Mr. Bick lists “honest subject lines” as a requirement only where there is consent to the receipt of the e-mail. Congress sometimes acts in mysterious ways, but not here. The Act (in Section 5(a)(2)) prohibits deceptive subject headings (and more) in all commercial e-mails, not just where there is consent. Second, if the FTC implements a do-not-e-mail registry, which is not the foregone conclusion that Mr., Bick implies, there is no reason to believe that it will be an “additional requirement” only where there is consent. David Straus Washington, D.C. Editor’s note: See related correction, p. 3.

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