CAN-SPAM Myth #2: This Law Makes it OK to Spam

Three CAN-SPAM Myths: CAN-SPAM is the US Federal Anti-spam law. If you're sending commercial email in the US, or you're a savvy spam filterer, you probably already know a bit about the law. But, did you know these specific points? Here are three common myths that I have run into, where people misunderstand what CAN-SPAM does or doesn't do.

Keep in mind I'm not a lawyer, and this is not legal advice.

Today in my second of three posts in the series, I'll address CAN-SPAM Myth #2: That the law makes it OK to send spam.

CAN-SPAM has been derided by various anti-spam groups as a license to spam. Their complaints are legitimate, but that's not the entire story. It's true that CAN-SPAM doesn't prohibit spam, and I personally find that to be a huge disappointment. But CAN-SPAM does include requirements that can be a helpful tool to encourage best practice permission compliance.

On the flip side of things, you run into ignorant senders and bad actors who think that CAN-SPAM defines spam, and as long as they stay "within the law," ISPs must accept their messages. Nothing could be further from the truth! Consider:

The law clarifies that ISPs are allowed to block whatever they want. "Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages."

What does this mean? It means that ISPs are free to block whatever they want. CAN-SPAM is not a "get out of jail free" card. ISPs are free to set an anti-spam standard higher than CAN-SPAM.  (And they nearly universally do set a higher standard. The top ISPs set regularly block millions of CAN-SPAM compliant messages daily.)

The law defines an affirmative consent standard: It provides helpful guidance on what constitutes opt-in. "The term 'affirmative consent', when used with respect to a commercial electronic mail message, means that- (A) the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient's own initiative; and (B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient's electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages."

The affirmative consent standard affects whether or not you are required to label your mail as an advertisement. No consent means you have to label your mail as spam. Labeling your mail as spam means that it's going to be easier for ISPs to filter or block it. The net result means that affirmative consent is a necessary step for getting mail delivered successfully.

Watch for part three on Wednesday...

4 comments:

John L said...

Saying "we're CAN SPAM compliant" is like saying "we pay minimum wage." Of course you do, if you didn't you'd be breaking the law. But neither one makes anyone want to do business with you.

Anonymous said...

"No consent means you have to label your mail as spam."
Exaggeration? Why don't you say "label your mail as advertisement." There is enough confusion about CAN-SPAM already. Don't make it more.

Al Iverson said...

Great comment, except for the fact that you're completely wrong. If the mail is unsolicited, you need to label it as an advertisement. In other words, if the mail is spam, you need to label it as spam. Think it through -- when lacking permission, you need to label your mail in a way that makes it dead easy for ISPs to denote that you don't have permission. The net here is that spam must be labeled and that you're making it easier for ISPs to block it, which they will handily do.

Al Iverson said...

Also, CAN-SPAM is one of the easiest laws in the world to comply with. If you find that "confusing," then I don't know what to tell you.