Spam and the Law: What's Legal and What's Spam

[4ndr3w]

Well, the mods started this board at my request, so I kind of feel responsible for making sure it succeeds.

E-mail can be tough. E-mail advertising is a regulated industry. In 2003, the CAN SPAM Act became the law of the land, and it's important to know what minimum requirements the law enunciates, and what is expected of you as a sender beyond those requirements.

It's just not enough to comply with CAN SPAM. Even though the legislation makes certain kinds of spam legal, legal spam is still spam. If you have permission from your recipients, CAN SPAM never becomes an issue.

And this is the crux of the issue: permission. There must be prior, informed express consent from the intended recipient, no matter what else the law permits. Anything less is, in fact, spam - even if it is perfectly legal. Let's break it down:

1. Prior: You must have permission before you send. Please note that spamming for permission is still spam.

2. Informed: Your recipients must be told up front precisely what it is they are signing up for. You must not send them anything more or different from this.

3. Express consent: Granting permission is an affirmative act. You cannot assume you have permission, or equate silence with permission. You cannot transfer permission to another type of e-mail (see "Informed", above).

4. From the recipient: Permission is non-transferable. My friend cannot give you permission to send to me, nor can I to my friend. Only I can give you permission to send me mail.

Note that the law requires a working unsubscribe link, but having one does not magically turn spam into not-spam.

Remember, it's not about content, it's about consent. If you're sending without consent, you're a spammer, even if you are otherwise in compliance with applicable law.

[cactus_joe]

Hey there...

So I take it that the 500 spams per day that I receive must come from servers in India or something? This law doesnt do much in my opinion to protect the average citizen, only punish legitimate businesses that make mistakes. We have a joke around the office about the discount of Viagra... Because some of us get random emails virtually on the hour. "Oh, Viagra is up to a 79% discount"!!!

[Cactus_AudreyK]

Originally Posted by cactus_joe

Hey there...

So I take it that the 500 spams per day that I receive must come from servers in India or something? This law doesnt do much in my opinion to protect the average citizen, only punish legitimate businesses that make mistakes. We have a joke around the office about the discount of Viagra... Because some of us get random emails virtually on the hour. "Oh, Viagra is up to a 79% discount"!!!

I know what you mean Joe! I also recently read another article that spam is getting past the Gmail captchas... Spammers crack Gmail Captcha codes - vnunet.com

Whether legal or not, spam is something we all face. If you own an ecommerce business, it's your responsibility to walk a fine line in how many times you communicate with people who have signed up for your email lists.

Once a day is obviously too much... Once a week might even be too much if you don't have something relevant to say, or something to offer besides a "Sale"... I know I'm frustrated personally by reputable businesses... for example, Frontgate and Pottery Barn have me on their lists, and it seems every time I open my email box, even though I've unsubbed, they have an email waiting for me.

Even though I do love most of the stuff Pottery Barn offers, I'm so frustrated that I don't personally want to take my business there- because I don't want to start another round of emails... or support a company that would therefore think that their email blasts are successful.

Email marketing, the law, and most importantly, consumers opinions are definitely something to concern yourself with in the world of ecommerce.

[4ndr3w]

Originally Posted by cactus_joe

So I take it that the 500 spams per day that I receive must come from servers in India or something? This law doesnt do much in my opinion to protect the average citizen, only punish legitimate businesses that make mistakes.

Well, I didn't say it was a good law. As it turns out, most spam does in fact originate from the US and South Korea (where consumer broadband access is ubiquitous).

Spammers have teamed with crackers, and in some instances, organized crime to create trojans that infect always-on, broadband-connected computers. These compromised machines are used to inject spam into the mail stream without the owners' knowledge or consent.

Very often the spam is then bounced off of unsecured mail servers outside the US to further obfuscate the true origin of the spam.

I've not yet heard of any instance of the government pursuing a legitimate business that merely made a mistake with CAN SPAM. However, CAN SPAM violations were crucial to the conviction of top ten spammer Jeremy Janes in Virginia, which was just upheld by the state supreme court. This guy was sending Make Penis Fast, penny stock shills, and other unsavory missives by the billions.

[Cactus_AudreyK]

I'm glad they cracked down on Jeremy Janes... I guess like with anything else, there's a yin and yang of natural progression. There's always a few who ruin the fun for everyone else..