Experts cannot seem to agree on what effect the CAN-SPAM Act will have on unsolicited e-mails flooding corporate and personal inboxes. Supporters say that by creating a nationwide standard, the federal anti-spam legislation will help stem the tide of unwelcome e-mail offers. Opponents counter that the law is more lenient than many of the state statutes it pre-empts, and will permit spam previously banned by those laws.
By Tamara Loomis|December 31, 2003 at 12:00 AM
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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 inboxes. But in several ways, the new legislation may ease the regulatory burden on legitimate e-mail advertisers. The law, which President George W. Bush signed Dec. 16, goes into effect Thursday. Congress passed the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act by a wide margin earlier this month, after more than six years of failed efforts to enact a federal anti-spam law. The multipart set of rules will dictate 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 preempt, 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 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 lawsuit 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 preempted it. Terri Seligman, an attorney for legitimate advertisers, said 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,” said 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 said. “The big victory was getting a nationwide standard,” Seligman said. She added that advertisers were also relieved that they will not have to grapple with the now-preempted California legislation. “I had clients who were going to take all California and unidentified e-mails off their mailing list,” Seligman said. But the bill is not all good news for advertisers, she said. “Advertisers are unhappy that the new law requires the FTC to study and consider the “do not e-mail” registry,” she said, 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:
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