With EU member states busy implementing a directive requiring opt-in for most unsolicited commercial email, the US looks like opting for ‘opt-out’ across all 51 States.
Who: The US legislature
Where: Washington DC
When: December 2003
The US House of Representatives has agreed a Senate amendment to proposed federal legislation imposing standardised, US-wide controls on digital marketing.
The full title of the act, which is currently awaiting signature by President Bush (who has said that he will sign it), is “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003″. It has been nicknamed the “CAN SPAM Act 2003″. The new law, if enacted, will require that all commercial email messages include an opt-out, a physical address and an indication that the email is a solicitation.
Identifying messages as commercial
The bill leaves it to the sender of the email to determine how to indicate that the message is a commercial one, this means that current US state laws which actually require the prefix “ADV” to go into the subject box of unsolicited commercial email will be pre-empted, with the federal law leaving it up to marketers to decide how to show that the message is commercial.
Opt-in or opt-out?
More fundamentally, the new law is an “opt-out” law, entitling commercial email senders to continue sending those messages unless and until the recipient has opted-out.
The new law will also contain civil prohibitions against the sending of false or misleading header or transmission information in commercial emails, against using another computer to relay retransmitted commercial email for the purposes of disguising its origin and against sending commercial email that includes no originating email address, domain name or internet protocol address, or those obtained by means of false pretences or representations. Deceptive subject headings in commercial emails will also be prohibited.
Additional remedies will be made available against those who violate the falsification and deception provisions by “harvesting” email addresses or engaging in “dictionary attacks”. Other remedies will be available against the automated creation of multiple email accounts to transmit otherwise unlawful messages and the relay or retransmission of commercial email from computers that have been accessed without authorisation.
Penalties include 1, 3 or 5 years in jail and/or fines and Attorneys General can sue for monetary loss or statutory damages in the amount of $250 per e-mail up to $2 million. Damages can be trebled if the conduct is wilful and knowing.
California opt-in law to be scrapped
If President Bush signs the CAN SPAM Act before the end of 2003, this will supersede a proposed blanket “opt-in” digital marketing law which California had intended to bring into force on 1 January 2004.
E-mail preference service?
But if there is to be an opt-out regime, then is there going to be a simple and easy way by which individuals can centrally register their desire not to receive commercial emails? It is already possible for individuals to do this by means of registering with the US Direct Marketing Associations’s “e-MPS” service. However, marketers can decide for themselves whether to use this (although members of the UK’s DMA are required by the DMA Code to consult the e-MPS before sending unsolicited commercial emails to recipients outside the EEA (the EU plus Iceland, Liechtenstein and Norway) ) and it has not experienced huge take-up.
Under the CAN SPAM Act the Federal Trade Commission will be required to set forth a plan and timetable for establishing a nationwide compulsory do-not-email registry. However, at this time and under the current rules proposed, the FTC will only be required to investigate this possibility, not to actually implement it. If it does decide to introduce one, however, it will under this statute have the authority to do so.
Why this matters:
Rather like the European Union, the US is currently a patchwork of differing state regimes when it comes to digital commercial email. At least 35 states have their own slightly differing laws, all of which are opt-out. It has taken the Californian initiative to prompt the legislators in Washington into federal anti-SPAM laws, although many regard the decision to go to an opt-out regime as a cop-out.
Assuming the President signs off the law, it will also leave clear blue water between the opt-in regime for commercial email now being introduced in Europe pursuant to the recent Privacy and Electronic Communications Directive, and the situation in the US from 1 January 2004.