Earlier this week I posted about the increased amount of B2B spam I’m receiving. One message is not a huge deal and I just delete and move on. But many folks are using marketing automation to send a series of emails. These emails often violate CAN SPAM in one way or another.
This has been the law for 13 years now, I find it difficult to believe marketers are still unaware of what it says. But, for the sake of argument, let’s talk about CAN SPAM.
What is CAN SPAM?
CAN SPAM is the US law regulating commercial email. It was passed and signed into law in 2003. It took effect Jan 1, 2004.
CAN SPAM is primarily enforced by the FTC, with the FCC having responsibility for email to certain domains. In 2005 FTC published clarifying rules to help businesses comply with the law.
What does it regulate?
CAN SPAM regulates commercial email. The act defines commercial email as:
The term “commercial electronic mail message” means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).
Commercial electronic mail messages do not include “transactional” or “relationship” messages. These messages are defined as messages related to a specific transaction (such as receipts and warranty information) or related to a membership (such as a statement or renewal notice).
What are the requirements?
CAN SPAM is pretty simple in what it regulates.
- Commercial mail cannot have any forgeries.
- Every email must have physical address for the sender.
- Every email must provide a way for the recipient to unsubscribe. There are a number of requirements around the unsubscribe process.
- Users must be able to unsubscribe over the internet, either by replying to the mail or clicking on a link.
- The reply address or link must be active and functional for at least 30 days after the email is sent.
- Senders must not require payment for unsubscribes.
- Recipients only have to provide their email address. They cannot be forced to supply any additional information.
- Recipients cannot be required to send more than one email or visit more than one webpage to unsubscribe.
- Unsubscribes must be effective within 10 days of receiving a request.
- Unsolicited email is prohibited to wireless domains as defined by the FCC.
- Advertising email must be clearly marked as advertising.
- Sexually explicit email must be labeled with SEXUALLY EXPLICIT in the subject line.
These are pretty simple requirements. Note, that most of these apply to any commercial email, not just bulk or unsolicited email.
What are the penalties?
The law provides for fines and jail time. Fines can reach $16,000 per violation. Enhanced penalties, including treble damages and jail time, take effect if certain conditions are met. Some of these conditions include harvesting addresses, using false whois information, or making up email addresses.
Who enforces CAN SPAM?
CAN SPAM doesn’t have a private right of action. Enforcement is by federal or state agencies or commercial email providers. Some of the webmail providers have sued spammers for CAN SPAM violations. Mailbox owners, such as businesses, may have standing to sue for CAN SPAM. A series of cases brought by individuals has really killed the ability of individuals to sue under the act.
Is there more?
There is, and you can read the FTC summary if you’re interested. The FTC talks about primary purpose and what’s transactional and what happens when there is more than one sender for a message.
How can you comply?
Compliance is pretty simple. I recommend clients just follow the rules for every email they send out. The rules are so basic, that there is no harm in applying them to emails that might not be covered. I tell clients to do the following for all their commercial email:
- Include your physical address in every email.
- Provide a simple unsubscribe link in every email, even transactional ones.
- Use a valid address in whois, and avoid privacy protection services for email domains.
That’s really CAN SPAM compliance in a nutshell.
For many of my B2B spammers these days, compliance seems overly difficult and complicated. Most of them don’t have unsubscribes. Almost none of them have a physical address in the mail. For the senders who harvested my address off LinkedIn, enhanced penalties apply. As a business owner I could probably successfully file suit against some of these spammers. But that seems time consuming and ineffective.
I’ve been trying to work out new ways to deal with this. I’m considering supplying links to some blog posts here. I may also include a proposal for them to hire me so I can help them send mail that complies with CAN SPAM.
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I agree, not enough people are familiar with the CAN SPAM act. I think 2 of the biggest ways I’ve seen this law violated is:
1) Missing address. This is SOOO simple to fix. Put your address in your signature or footer. In fact, if you don’t people like me will think you are trying to hide something and doubt your reputation.
2) Using Scrappers. Many people are using scrapping software to get emails to “spam” them. This is ALWAYS against the CAN SPAM act as it is not allowed to send marketing emails to emails harvested using software. Now, if you manually go collecting emails, while it may still be “spammy” it is not against the CAN SPAM act.
So I’ll give you a personal example. I have a directory for youth leagues. I had data entry people go through various other directories of leagues, then visit the league’s site to get their information for my directory including their email. I could have made a scrapper to do this. Since I didn’t use a scrapper and did it manually I am allowed to email them an email telling them about their profile, asking them to confirm their details, and mentioning about upgrading to a paid listing. If I had used a scrapper then it would violate the CAN SPAM act for me to send this type of email.
Stay Legit!!!
This is one of the biggest misunderstandings of CAN SPAM. Harvesting / scraping addresses in and of itself is NOT a CAN SPAM violation. If an address is harvested or scraped and the mail violates CAN SPAM in another way then enhanced penalties apply.
From the FTC Rulemaking doc:
“[S]ection 7704(b) specifies four “aggravated violations” — practices that compound the available statutory damages when alleged and proven in combination with certain other CAN-SPAM violations.
“15 U.S.C. 7704(b). The four such practices set forth in the statute are: address harvesting; dictionary attacks; automated creation of multiple email accounts; and relaying or retransmitting through unauthorized access to a protected computer or network. The Act’s provisions relating to enforcement by state attorneys general and providers of Internet access service create the possibility of increased statutory damages if a court finds a defendant has engaged in one of the practices specified in section 7704(b) while also violating section 7704(a). Specifically, sections 7706(f)(3)(C) and (g)(3)(C) permit a court to increase a statutory damages award up to three times the amount that would have been granted without the commission of an aggravated violation. Sections 7706(f)(3)(C) and (g)(3)(C) also provide for this heightened statutory damages calculation when a court finds that the defendant’s violations of section 7704(a) were committed “willfully and knowingly.”