CAN-SPAM Act of 2003 (and its 2008 updates). A brief overview.

1. CAN-SPAM ACT
AN OVERVIEW
Disclaimer:
FulcrumTech
is
not
a
law
firm
and
makes
no
representaTon
that
the
material
provided
is
accurate
with
respect
to
the
most
current
applicable
laws.
You
should
always
consult
a
licensed
aWorney
if
you
have
any
quesTons
or
concerns.
©
Copyright
2011,
FulcrumTech,
LLC.
All
rights
Reserved.
Mitchell
Lapides
|
President
&
CEO
|
215-­‐489-­‐9336
|
info@fulcrumtech.net

2. OVERVIEW
FOR
BUSINESSES
§ What
the
act
covers
§ Primary
requirements
of
the
law
§ PenalTes
for
non
compliance
§ InternaTonal
laws
§ Relevant
professional
pracTces

3. CAN-­‐SPAM
ACT
§ 2003: Controlling the Assault of Non-Solicited Pornography
and Marketing Act of 2003)
§ 2008: Commission voted to approve a Federal Register
Notice clarifying various elements of the original Act
CAN-SPAM addresses U.S., not other countries.

4. TWO PRIMARY TYPES OF MESSAGES
Commercial Content: Transactional or
Advertises or promotes a Relationship Content:
commercial product or Facilitates an already
service, including content agreed-upon transaction or
on a website operated for a updates a customer about
commercial purpose. an ongoing transaction.
Know the primary purpose.

5. STRAIGHT
FROM
THE
FTC
• Question: How do I know if what I’m sending is a
transactional or relationship message?
• Answer: The primary purpose of an email is transactional or
relationship if it consists only of content that:
• facilitates or confirms a commercial transaction that the recipient already has agreed to;
• gives warranty, recall, safety, or security information about a product or service;
• gives information about a change in terms or features or account balance information
regarding a membership, subscription, account, loan or other ongoing commercial
relationship;
• provides information about an employment relationship or employee benefits; or
• delivers goods or services as part of a transaction that the recipient already has agreed to.
Contact FulcrumTech at info@fulcrumtech.net for a copy of the FTC document.

6. WHAT
IF
EMAIL
HAS
TWO
PURPOSES?
§ Know
the
primary
purpose
§ Look
at
the
subject
line—determining
factor
§ Look
at
the
content
and
locaTon
of
transacTonal
porTon

7. A
COMMERCIAL
EMAIL
EXAMPLE
Subject Line:
[First Name], it's
the LAST DAY for
FREE SHIPPING &
a FREE $20
Reward E-Card

8. A
TRANSACTIONAL
MESSAGE

9. PRIMARY
REQUIREMENT
#
1
Do not use false or misleading
header information
§ From
§ To
§ Reply-to
§ Routing information
(originating domain name)
Be accurate—identify the person who initiated the message.

10. PRIMARY
REQUIREMENT
#
2
Do not use deceptive subject lines
Examples
§ Guilt-­‐Free
EaTng
–
Try
it
FREE
§ You
are
approved
for
a
NEW
Computer
and
10,000
USD
§ Ronald,
your
credit
card
debt
legally
cancelled!
§ JANET!
–
Here’s
Money
You
Never
Knew
You
Had
§ Claim
Money
You
Never
Knew
You
Had
The subject line must accurately reflect the content of the message.

11. IS
THIS
MISLEADING
OR
DECEPTIVE?
§ From Name: Apple
§ Subject line: Free iPad
—click to claim it now
§ Actual content:
McNutty’s Online
School of Irish Dance
lessons

12. PRIMARY
REQUIREMENT
#
3
Identify the message as an ad
§ The law gives you a lot of leeway in how to do this, but you
must disclose clearly and conspicuously that your message is
an advertisement
Do not hide the fact that your message is commercial in nature, if it is.

13. PRIMARY
REQUIREMENT
#
4
Tell your recipients where
you are located
§ Valid physical postal
address
§ Post office box
registered with the U.S.
Postal Service
§ Private mailbox
registered with a
commercial mail
receiving agency
established under
Postal Service
regulations

14. PRIMARY
REQUIREMENT
#
5
Tell recipients how to opt out of receiving
future email from you
§ Clear and conspicuous explanation of
how to opt out
§ Ordinary person must be able to
understand
§ Use type size, color, and location for
clarity
§ Provide a return email address or
another easy Internet-based way to
communicate choice
§ Opt out menu allowed, but must
include option to stop all commercial
messages from you

15. EXAMPLE
OF
CLEAR
OPT
OUT
§ Lands’ End

16. PRIMARY
REQUIREMENT
#
6
Honor opt-out requests promptly
§ Opt-out mechanism must last for at least 30 days AFTER you send
your message
§ Must honor opt-out request within 10 business days
§ Can’t charge a fee
§ Can’t require any personally identifying information beyond
email address
§ Can’t require any step other than sending a reply email or
visiting a single page on an Internet website as a condition for
honoring opt-out request
§ Can’t sell or transfer opt-out email addresses, except to a
company you’ve hired to help comply with CAN-SPAM

17. PRIMARY
REQUIREMENT
#
7
Monitor what others are doing on your behalf
§ Even if you hire another company to handle your email
marketing, you can’t contract away your legal responsibility
to comply with the law

18. MESSAGES FROM MORE THAN ONE COMPANY
§ One can be designated as sender IF they:
§ Meet definition of “sender” according to CAN-SPAM (i.e. initiate
a commercial message advertising or promoting their own
goods, services, or website
§ Are identified in the “from” line
§ Comply with the “initiator” provisions of the Act
§ Initiator—nondeceptive transmission information, no
deceptive subject heading, valid postal address, working
opt out link; proper identification of message’s commercial
or sexually explicit nature

19. SEXUALLY
EXPLICIT
EMAIL
§ Messages with sexually oriented material must include the
warning below at the beginning of the subject line:
§ “SEXUALLY-EXPLICIT
§ Brown paper wrapper—no images
§ UNLESS, recipient has given affirmative consent to receive
the sender’s sexually oriented messages

20. PENALTIES
FOR
NONCOMPLIANCE
Financial penalties:
§ EACH separate email subject to
penalties up to $16,000
§ More than 1 person or company
may be held responsible (e.g.
company that owns the
products and the company that
sends the email)
§ Aggravated violations

21. CRIMINAL
PENALTIES
Criminal penalties, including imprisonment for:
§ Accessing someone else’s computer to send spam
§ Using false information to register for multiple email accounts
or domain names
§ Relaying or retransmitting multiple spam messages through to
mislead others about origin
§ Harvesting email addresses or generating through dictionary
attack
§ Using open relays or open proxies without permission

22. PENALTIES
–
HOW
MUCH?
§ Each separate email in violation of the law is subject to
penalties of up to $16,000, and more than one person may
be held responsible for violations
§ Aggravated – if…
§ Violation was willful
§ One or more violations
§ Reduced – if …
§ Defendant established and implemented, with due care,
commercially reasonable practices and procedures designed to
effectively prevent such violations
§ Violation occurred despite commercially reasonable efforts to
maintain compliance

23. STATE
LAWS
COULD
APPLY
TOO
“This Act supersedes any statute, regulation, or rule of a State
or political subdivision of a State that expressly regulates the
use of electronic mail to send commercial messages, except
to the extent that any such statute, regulation, or rule prohibits
falsity or deception in any portion of a commercial electronic
mail message or information attached thereto.”

24. INTERNATIONAL
LAWS:
CANADA
Opt-in law:
§ “It is prohibited to send or cause or permit to be sent to an
electronic address a commercial electronic message unless
the person to whom the message is sent has consented to
receiving it, whether the consent is express or implied”
§ “Implied” suggests “existing business relationship,” but 2-year
limit
§ Unsubscribe requirements: similar to CAN-SPAM
§ No harvesting; no dictionary attacks

25. INTERNATIONAL
LAWS:
EU
Broad statements by the European
Commission:
§ Article 13(1) of the Privacy and
Electronic Communications
Directive requires Member
States to prohibit the sending of
unsolicited commercial
communications by fax or e-mail
or other electronic messaging
systems such as SMS and MMS
unless the prior consent of the
addressee has been obtained
(opt-in system).
§ Each country also may have its
own laws and regulations

26. PROFESSIONAL
EMAIL
PRACTICES
§ Higher bar for permission for professional emailers
§ Why the higher bar?
§ ISPs demand it
§ Email service providers’ businesses depends upon it
§ Legitimate emailers have no choice

27. UNSOLICITED
ADVERTISEMENT
Any material advertising the commercial availability or quality
of any property, goods, or services which is transmitted to any
person without that person’s prior express invitation or
permission, in writing or otherwise.

28. OUR BACKGROUND AND EXPERTISE
§ FulcrumTech was founded in 2004 by Mitch Lapides, a senior healthcare
publishing and technology-product executive with more than 20 years
of experience.
§ Mitch’s strategic and operational expertise and leadership is brought to
every FulcrumTech project to drive powerful results for every client.
§ The FulcrumTech team of marketing, email, and publishing experts
includes experienced talent in every aspect of online communications:
strategy, copywriting, design, analytics, data warehousing, publishing,
project management, market research, and much more.
§ With mathematics and statistics experts as well as certified email
marketing professionals and e-commerce marketing experts, we
understand how to build and measure campaigns that truly drive
improved ROI.
§ We have demonstrated success in email-marketing across industries
and markets.

29. CONTACT FULCRUMTECH
Mitch Lapides, President and CEO
Email: info@fulcrumtech.net
Phone: 215-489-9336
Mitch
Lapides