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FTC Calling for Comments on Proposed CAN-SPAM
Rules
By Ronald
G. London
[May 2005]
On May 12, 2005 the Federal Trade Commission published a notice
in the Federal Register seeking public comment on proposed new
rules implementing the CAN-SPAM Act (the “Act”).
The Notice follows an advance notice period that generated over
13,500 comments.
The proposed rules cover the following primary topics:
- Reduction of the amount of time for senders to honor an
opt-out request
- Clarification of steps necessary to submit valid opt-out
request
- Definition of “person” under the Act
- Modification of the definition of “sender” where
multiple parties are involved
- Clarification of scope of definition of "valid physical
postal addresses"
Substantive Changes
Under the proposed rules, the sender of a commercial email
will have just three days to honor opt-out requests, rather
than the current 10 days. This is a significant change to the
rules and, if adopted, will require many senders of commercial
email to adopt new practices in order to comply.
The proposed rules would also clarify that commercial email
senders are not permitted to require recipients to take any
steps beyond sending a reply e-mail or visiting a single Internet
webpage, in order to submit a valid opt-out request. This means
that a recipient cannot be forced to pay a fee or provide information
(other than an e-mail address and opt-out preference).
Definitional Proposals
The term “person” is currently not defined in the
Act, although its use therein is ubiquitous. The proposed definition
states that a “person” includes “any individual,
group, unincorporated association, limited or general partnership,
corporation, or other business entity.” The phrase “valid
physical postal address” is also undefined in the current
Act, and although this term might appear straightforward, the
Commission is proposing that a definition be added that would
include both United States Post Office boxes as well as private
mailboxes established pursuant to United States Postal Service
regulations.
The most significant definitional change being proposed by
the Commission is a modification to the definition of “sender”
to address single emails containing advertisements from multiple
parties, for purposes of determining which party or parties
must comply with the Act’s opt-out provisions. The rule
change would clarify that where one party fits the definition
of “sender” in the Act and either controls the email’s
content, determines the email addresses to which the email is
sent, or is identified in the "from'' line as the sender,
then only that party will be considered the sender. However,
where no single party among the multiple parties whose advertisements
appear in the email controls the content, determines the addressees,
or is identified in the “from” line, all
of the parties will be considered “senders” and
therefore responsible for complying with the opt-out procedures.
Other Clarifications
One concern addressed by the Commission in the Notice but not
the subject of any proposed rule is "forward-to-a-friend"
email marketing, where recipients are asked to forward commercial
emails to persons on their own contact list. The Commission
states that the email marketer must comply with CAN-SPAM opt-out
and disclosure requirements only if that marketer intentionally
pays, provides consideration to, or otherwise induces another
to forward the e-mail.
Finally, the Commission also addresses emails that do not fall
under the Act’s prohibitions because they are either related
to a specific transaction or because they are in connection
with an ongoing commercial relationship between the sender and
recipient. In the Notice, the Commission declines to specify
how many follow-up emails a sender may transmit and avoid some
of them being deemed commercial, and instead states that a reasonableness
standard will apply.
The complete text of the Notice is available at the FTC’s
website, www.ftc.gov.
For information relating to the last round of rulemaking, please
see our previous advisory, "FTC
Issues Final CAN-SPAM Rule On Definition of “Commercial”
Email Messages."
Legal rules and technologies change rapidly and profoundly,
making it increasingly difficult for companies to successfully
navigate the laws and obligations in the privacy and security
arena. DWT is taking an active part in identifying and addressing
potential legal issues that may affect our clients.
June 27, 2005 is the deadline for public comment
on the proposed new rules and clarifications of the existing
rules set forth in the Notice. If you are interested in submitting
comments, or have further questions about the proposed rules,
please direct any such inquiries to:
Other DWT contacts:
Kraig
Baker, Seattle, (206) 628-7619, KraigBaker@dwt.com
Thomas
R. Burke, San Francisco, (415) 276-6552, ThomasBurke@dwt.com
Robert
J. Driscoll, New York, (212)
603-6445, RobertDriscoll@dwt.com
This Advisory is a publication
of the Privacy and Security Group of Davis Wright Tremaine LLP.
Our purpose in publishing this Advisory is to inform our clients
and friends of recent privacy and security developments. It
is not intended, nor should it be used, as a substitute for
specific legal advice as legal counsel may only be given in
response to inquiries regarding particular situations.
Copyright © 2005, Davis Wright
Tremaine LLP.
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