December 10, 2003

Legislative Activity

Date: December 10, 2003

To: AAF Members

From: Jeff Perlman, EVP-government affairs
Clark Rector, SVP-state government affairs
Joanne Schecter, SVP-club services

Re: Anti-Spam Legislation

On Monday, the U.S. House of Representatives gave final approval to S.877 the CAN-SPAM Act. The bill is designed to help minimize the proliferation of unsolicited commercial email, or spam. President Bush is expected to sign the bill into law.

AAF worked with many other business groups to lobby for passage of the law, which we believe draws some balance between tools and provisions to restrict spam, yet still enabling legitimate marketers to use email to communicate with potential customers. Perhaps most importantly the new law, which goes into effect January 1, 2004, will preempt numerous state laws and create a uniform national standard to commercial e-mail.

All AAF members and clubs who use e-mail to communicate with customers and potential customers should be familiar with the major provisions of the new law and insure that your communications are in compliance.

The law requires that all commercial e-mail messages include an opportunity for the consumer to opt-out of future emails, a physical address and clear notice that the email is a solicitation. Exempt from the law are "transactional or relationship" e-mail messages. These include e-mails about account balances, memberships, subscriptions, or other ongoing commercial communications that are not primarily solicitations.

The law contains civil provisions against:

  • the sending of false or misleading header or transmission information in a commercial e-mail message;
  • using another computer to relay or retransmit commercial e-mail for the purpose of disguising its origin;
  • sending commercial e-mail that includes an originating e-mail address, domain name, or Internet protocol address that was obtained by false pretenses or representations; and
  • the use of deceptive subject headings.

The law will also criminalize the worst spammer practices, such as:

  • initiating more than 100 commercial e-mail messages in a 24-hour period involving backing into some else's computer to send bulk spam;
  • using "open relays" to send multiple spam with the intent to deceive ISPs or recipients as to the origin of the messages;
  • falsifying header information in spam;
  • registering for five or more e-mail accounts or two or more domain names using false information and then sending multiple spam from these accounts; and
  • falsely representing oneself to be the holder of five or more Internet protocol addresses and sending multiple commercial e-mail messages from such addresses.

In addition to the opt-out requirements, the law requires initiators of sexually oriented commercial e-mail include a specific mark or notice to be created by the FTC. The mark must be in the subject heading or initially viewable to the recipient when the message is opened.

The law requires the FTC to initiate a plan and timetable for establishing a national "do-not-e-mail" registry. The plan must include any practical, technical, security, privacy, enforceability, or other concerns that the Commission has regarding the registry. The FTC is given the authority to implement the registry, but is not required to do so.

The FTC is directed to define criteria for determining whether the primary purpose of an e-mail message is commercial, and therefore, regulated by the new law.

The Federal Communications Commission is directed to issue rules "to protect consumers from unwanted mobile service communications."

We would like to acknowledge our colleagues at the Piper Rudnick law firm who helped to coordinate the business coalition that lobbied for passage of S.877 and provided an analysis of the new law.

Please do not hesitate to give us a call if you have any comments or questions.