Can-Spam Changes Life For Legit E-MailersCan-Spam Changes Life For Legit E-Mailers

While the Can-Spam legislation has failed to slow the flow of junk E-mail, it's changing the way respectable businesses send E-mail, says an attorney who advises corporations on the issue.

Charles Kennedy, an attorney in the Washington office of Morrison & Foerster, says the legislation, which went into effect Jan. 1, has caused many respectable senders of E-mail to change their practices to comply with Can-Spam.

"The new law is having a big impact on respectable companies," Kennedy said in an interview. "A guy with a server in Antigua sending porn won't comply. But a U.S. bank offering credit cards has to comply." He doesn't expect any reduction in the amount of spam being generated.

The new federal law has several provisions that were aimed at countering much of the obnoxious E-mail that consumers and businesspeople have come to hate. But while spammers aren't changing their ways because of the legislation, respectable E-mailers are. For instance, according to Kennedy, they have to be careful that their names are accurate, they can't register addresses in a deceptive manner, and their E-mail subject lines can't be deceptive or misleading.

Kennedy has advised more than 200 clients--all legitimate users and would-be users of E-mail messaging--to focus on two main issues regarding the new law. First, they must provide an "opt-out"--an E-mail or URL address users can utilize to stop the sender from sending future unsolicited messages. Second, there must be a label in the message specifying that the message is an ad or a solicitation.

"Everything is a little less confusing because of the federal law," said Kennedy. "A big reason for enacting the federal law was the confusion caused by inconsistent state laws. The states can still enforce state anti-spam laws that relate to fraud and deception, and state prosecutors can even bring their own actions under the federal law." He added that state laws that impose opt-in, labeling, and other requirements not specifically aimed at fraud and deception are preempted by the new federal law. Also, states may not ban spam outright.

California had proposed a particularly tough law against spam, but the federal law has preempted many of its provisions. Indeed, California public officials have complained that their citizens have less protection against spammers because of Can-Spam. Attorney general Bill Lockyer has said California was "disempowered" by the federal law, although he said his office still planned to take action against some spammers.

Addressing the ineffectiveness of Can-Spam, Kennedy pointed to the Federal Trade Commission, which has been assigned to examine the issue and report back to Congress. "The FTC has been told to write some rules," Kennedy said. "So we're waiting for the FTC now."

Kennedy recommends that respectable operations sending legitimate E-mail should also acquaint themselves with European anti-spam regulations. "The Europeans," he said, "are generally more aggressive about E-mail. If you are an American company, you have to be careful if you have an office or a server in Europe."

Some European anti-spam watchdogs and vigilantes have complained that Can-Spam will actually encourage the flow of spam, because it legalizes the sending of unsolicited E-mail. Anti-spam advocate Spamhaus, based in the United Kingdom, favored the original California law, which had outlawed the sending of any unsolicited spam at all. "With the passage of Can-Spam," Spamhaus said in a statement, "spamming is officially legal throughout the United States."

Said Kennedy: "I get just as much spam now as I got before Can-Spam."