SBsuccess.com - Could Your E-Mails Land You in Jail?

Date: 1/14/2004

Author: Linda Woods and James Lindsay

What You Need to Know About the CAN-SPAM Act of 2003

Are You in Compliance?

You've heard talk about e-mail marketing: How e-mails can improve your relationship with customers and clients as well as increase sales of products and services.

You've seen the statistics: How, according to a study by a well-known online marketing firm, 88% of consumers reported they made a purchase either online or offline as a result of receiving an e-mail.

Whether you're an active e-mail marketer or you've been thinking that you'd like to give e-mail marketing a try, you've probably heard the buzz about the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003," or the CAN-SPAM Act. It's legislation recently enacted by Congress and signed into law by President Bush that regulates the sending of unsolicited commercial e-mail messages.

Are you too late to make use of e-mail marketing without worrying about incurring a fine or even a jail sentence?

The answer is: Not if you do it right.

To begin with, the CAN-SPAM Act legislation isn't intended to prevent legitimate businesses from marketing to current customers and interested prospects. The legislation is, however, intended to crack down on the pornographic e-mails, the get-rich-quick-schemes, the cheap mortgage offers and other types of unsolicited e-mails that most of us hate to receive.

The Guidelines Defined

In order to send legitimate commercial e-mails, you should review and follow the guidelines set forth in the CAN-SPAM Act.

Guidelines 1, 2 & 3: The Basics --E-mail Address, Physical Address, Subject Line

All commercial e-mail messages must have a functioning return e-mail address (the "From" address.) Additionally, this address can't be purposely misleading.
All commercial e-mails must have a valid subject line indicating that the e-mail is an advertisement. For example, if you're sending unsolicited marketing e-mail, it's no longer lawful to include a subject line like, "Here's the information you requested."
And all commercial e-mails must have the physical postal address of the sender, i.e.: Company Name, 21 Main Street, Your Town, MA 01010. (Phone numbers are not required.)

Guideline 4: Opt-Out/Unsubscribe Mechanism
All e-mail must have an opt-out mechanism. This is essentially the same as an unsubscribe option in e-mail. Whether the recipient signed up to receive the e-mail or you sent it to them without their permission, there must be a conspicuous link within the message that allows them to opt-out or unsubscribe quickly and easily to discontinue receipt of your messages.

If you use another company's software to send out bulk e-mail marketing messages, check to make sure that your messages contain an unsubscribe link. Most of these programs have functionality built in that allows your users to automatically unsubscribe from your list. Additionally, it should also update your subscriber lists to avoid the chance of your sending unwanted emails to visitors who have unsubscribed. Call or e-mail your provider for clarification, if you're unsure.

If you're using Interland's E-Mail Marketer, then the unsubscribe function is automatically taken care of through the link at the bottom of every marketing e-mail sent from your account.

If you send commercial e-mail messages manually from your own e-mail address, you will need to provide a valid return e-mail address to which recipients can send an unsubscribe message in order to be removed from the list. Then, you will need to manually remove them from your distribution list.

An important note about the opt-out requirement: The CAN-SPAM Act also states that if a subscriber chooses to opt out, you must comply with any requests to remove their address within 10 days. Furthermore, the opt-out system must remain capable of receiving opt-out or unsubscribe messages or communications for no less than 30 days after the transmission of the original message.

Here's an expert tip: Some savvy marketers keep records of opt-in and opt-out requests, so that compliance can be proven, should that become necessary. Simply removing the user from the list might not be enough, especially if you buy independent lists of names in the future. You want to make sure that you don't send the same person an email again. If you're using Interland's E-Mail Marketer, you have access to a complete list of everyone who has unsubscribed to your e-mail campaigns.

Once an e-mail recipient has legitimately opted-out of your commercial e-mail message, it's unlawful for a business to send that person another message. (That's why it's important to have access to the names of those people who have chosen to opt-out of your e-mailings, especially if you buy bulk lists from outside sources.) Furthermore, you also are prohibited from selling or transferring the e-mail address of someone who has opted-out.

Also, be aware of forms that you might have within your marketing e-mails containing an opt-in button already selected-those in which recipients are automatically signed up for a mailing unless they actively opt out of the mailing. These will not be in compliance of the CAN-SPAM Act. So, if that's the case for you, you might want to remove the automatic opt-in now and replace it with a form where no responses have been pre-selected.

Guideline 5: Sexually-Oriented Commercial E-mail
Senders of sexually-oriented commercial email messages must include a specific mark or notice to be created by the Federal Trade Commission (FTC.) The mark must be in the subject heading or immediately viewable to the recipient when the message is opened. Within 120 days of the enactment of the CAN-SPAM Act, the FTC will specify the appropriate marks to include on all commercial e-mail that contains sexually-oriented material.

Guideline 6: Relationship or Transactional E-mail
If the e-mail message being sent is related to a transaction (transactional e-mail), or if it's a follow-up message to an already established relationship between the sender and the recipient (relationship e-mail), it does not need to have an opt-out provision, a physical postal address, or be identified as an advertisement. Some examples of this type of e-mail would be order confirmations, renewal notices, reports on account balances to members, etc. Any time you're following up with a customer with whom you have "affirmative consent" (they asked to be put on your mailing list,) you don't need to follow guidelines 1-3.

The six guidelines summarized above should be sufficient for most honest business to get started with an e-mail marketing campaign. The following six offenses are also set forth in the CAN-SPAM Act, but will probably not be familiar to most legitimate businesses. Hopefully, most legitimate businesses already comply with the following:

Guideline 7: Falsifying Header Information
You may not falsify your commercial e-mail message's "header" information which includes: the source, destination, and routing information attached to an e-mail message, including the originating domain name and originating electronic mail address, and any other information that appears in the line identifying the sender of the message.

Guideline 8: Falsifying E-mail Address, IP, Domain
It is unlawful to send commercial e-mail messages that include an originating e-mail address, domain name or Internet Protocol (IP) address that was obtained with the intent to deceive or mislead recipients. An IP address is a unique number that's assigned to every computer connected to the Internet. Since these numbers are usually assigned based on countries, an IP address can often be used to identify the country from which a computer is connecting to the Internet.

Guideline 9: Disguising Origin of E-mail
It is unlawful to use another computer, IP address, or e-mail address to send commercial e-mail messages for the purpose of disguising the origin of the e-mail.

Guideline 10: Hacking into Another's Computer
E-mail marketers are prohibited from hacking into another person's computer for the purpose of sending commercial e-mail. Some intentional spammers have done this in the past to disguise the actual origin of the spam.

Guideline 11: Using Protected Computers
E-mail marketers may not use protected computers to relay or resend commercial e-mail messages with the intent to deceive ISPs or recipients as to the origin of the e-mail messages.

Guideline 12: Registering for E-Mail with False Information
Offenders could actually do jail time for this one. It is unlawful to register 5 or more e-mail accounts to 2 or more domain names using false information and then using these accounts to send commercial e-mail messages.

Guideline 13: Registering for IP addresses with False Information
This offense is equally as bad and also can get you jail time. It's unlawful to falsely represent yourself as the registrant of 5 or more IP addresses and then use those accounts to send commercial e-mail messages.

Cheers and Jeers for CAN-SPAM

While many have applauded the CAN-SPAM Act, some argue that the new law doesn't go far enough. Interestingly, many anti-spam organizations opposed the law for this reason.

If you were planning to start e-mail marketing, or if you have e-mail marketing campaigns in the works, you can move forward so long as you are careful to comply with the CAN-SPAM Act and the guidelines summarized above.

Here's an expert tip: Go a step beyond the law and only mail to current customers or to prospects who have specifically asked to join your mailing list. Such e-mails are called permission-based, to distinguish them from spam. When you use permission-based e-mail marketing, you know your recipients will welcome and read your e-mails-and not think of you as a "spammer," which can damage your business credibility. The part of the CAN-SPAM law that requires you identify your e-mail as an advertisement doesn't apply to permission-based e-mail marketing.

Check out this article on SBsuccess.com for tips on how to grow your list of recipients by including an opt-in box on your Web site and collecting e-mail addresses at points of customer contact.

What You Need to Know About the CAN-SPAM Act of 2003

Are You in Compliance?

The Guidelines Defined

Cheers and Jeers for CAN-SPAM

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