Can Spam Act leaves little time to comply

The federal antispam law passed last month went into effect so quickly that many legitimate marketers are still scrambling to comply.

The Can Spam Act, which bans the most deceptive forms of unsolicited e-mail, or spam, was signed by President Bush on Dec. 17 and went into effect Jan. 1. It gave companies less than two weeks to update computer systems, educate employees and change the way they use e-mail as a marketing tool.

For most companies, the provisions outlined in the law are not difficult to comply with, and many already operate within it. But legal experts said it will take some time for all companies to come into compliance, particularly with the provision that requires companies to provide a way for e-mail recipients to unsubscribe from e-mail lists and to honor that request within 10 days.

While most legitimate marketers have offered unsubscribe options in bulk mailings, not all have included such an option in advertisements sent to one or to a handful of people.

“The technology exists, and it’s not complicated. There’s just new practices that have to be put in place,” said Ken Hirschman, general counsel for Digital Impact, a San Mateo, Calif., company that helps companies develop permission-based e-mail marketing campaigns. “People didn’t really have a lot of time to comply.”

The unsubscribe provision also may prove burdensome to companies that include advertisements in e-mail sent from other vendors. According to the law, both the sender of the e-mail and the advertiser must honor the request to unsubscribe.

In addition, some provisions in the Can Spam Act are undefined or ambiguous, according to people with knowledge of the law. For instance, the law specifies that a “commercial electronic mail message” is any message with a “primary purpose” to promote a product or service. But companies said it is not clear how “primary purpose” is defined. Also, the law says that “transactional and relationship” e-mail is permitted but does not offer an explanation as to what constitutes such messages.

“I think that’s something that’s going to be tested in a court of law, so you have to be very careful,” said Mike O’Brien, founder of the San Diego-based Can Spam Compliance Co., which assists marketing companies in changing computer systems to comply with the law.

Some lawmakers had proposed that the Can Spam Act be enacted within three or four months of passage, allowing marketers time to comply. But ironically, the marketing industry pushed for the law to be enacted Jan. 1, because that was the enactment date for California’s state antispam law. The California law, which was pre-empted by the federal measure, allowed individuals the right to sue spammers and had a strict provision making it illegal to send any commercial e-mail without explicit permission.

Legitimate marketers said that while they work to comply with the law, they are unlikely to be targeted by the Federal Trade Commission. The FTC has said it wants to go after the people responsible for the majority of spam, who send out millions of fraudulent e-mail messages each day and work to hide their identities. But marketers said they fear the FTC could extend its reach and go after a big-name company to make a statement.

“Violations that are really … technicalities are not going to attract the attention of the FTC,” said Charles Kennedy, a technology lawyer with Morrison & Foerster in Washington. “But prosecutors like high-profile targets.”