Spam Is a Matter of Definition
IBLS Contributor Odia Kagan, Partner, Shavit Bar-On Gal-On Tzin Nov Yagur Law Offices – Tel Aviv, Israel, okagan@sbilaw.com, writes:
On December 16, 2004 the US Federal Trade Commission (FTC) published regulations which define the relevant criteria to determine whether the primary purpose of an electronic mail message is "commercial" and thus such message is subject to the provisions of the CAN SPAM Act. The Regulations also require the inclusion of a warning in commercial e-mail messages that contain pornographic content. The regulations went into effect on February 18, 2005.
The Federal CAN SPAM Act
The Controlling of Non-Solicited Pornography and Marketing Act of 2003, popularly known as the CAN SPAM Act, went into effect on January 1, 2004 and was incorporated in Title 15 of the US Code, Section 7701. The Act intended to regulate commercial and pornographic e-mail, and prohibit actions such as the falsification of the identity of the sender and the use of misleading subject lines. The Law requires the inclusion of a notice in the subject line indicating the message is an advertisement and a physical return address as well as an "unsubscribe" link in every e-mail message. The sender must honor requests to be taken off of the mailing list and refrain from sending to such addresses, no later than 10 business days from the date of receipt of the request. In addition, the Law allows the states' attorneys general and Internet service providers to initiate legal proceedings. The remedies for violations of the Act include large fines as well as prison terms.
What Is A Commercial E-Mail Message?
The CAN-SPAM Act applies to commercial electronic messages. These messages are defined in the Act as: "Any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)". The Act required the FTC to issue regulations defining the relevant criteria to determine the primary purpose of an electronic mail message.
The FTC Regulations State The Following:
1. The e-mail messages that contain only the commercial advertisement or promotion of a commercial product or service will be deemed to have a commercial primary purpose.
2. For e-mail messages that contain commercial content and transactional or relationship content, the FTC sets a "first blush" approach. These e-mails have a commercial primary purpose if (1) a recipient reasonably interpreting the subject line of the e-mail message would likely conclude that the message contains commercial content; or (2) if the e-mail's transactional or relationship content does not appear in whole or substantial part at the outset of the body of the message. In the Act, "transactional or relationship content" refers to e-mail messages whose primary purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender (e.g. the provision of warranty information regarding a product and/or updates regarding a subscription).
3. The primary purpose of e-mail messages that contain commercial content as well as other content that is not transactional or relationship content will be considered commercial if (1) a recipient reasonably interpreting the subject line of the message likely would conclude that the message contains commercial content or if (2) a recipient reasonably interpreting the body of the message likely would conclude that the primary purpose of the message is commercial. In making these determinations, the following factors should be considered: the placement of the commercial content or a substantial part thereof at the beginning of the body of the message; the proportion of the message dedicated to such content; and also how color, graphics, type size, and style are used to highlight commercial content.
4. The primary purpose of e-mail messages that contain only transactional or relationship content will be deemed transactional and not commercial.
The Results of the CAN SPAM Act
Since the CAN SPAM act went into effect, the results "in the field" are far from satisfactory. The state of spam has been poignantly expressed by journalist David McGuire in an article published in the Washington Post on January 3, 2005 titled: "One Year After the Law - Spam Still Out of the Can". After a year, a rise was noted in the levels of spam in the United States from approximately 70 percent of the total e-mail traffic to approximately 80 percent. A decrease in the levels of spam was found only within large Internet service provider AOL which reported that the number of e-mail messages it handled dropped from 2.1 billion to 1.6 billion. The bulk of the decrease was assumed to be in spam.
Those who criticize the Act argue that the decrease in spam is the result of the advanced spam filters used by AOL. Others attribute the decrease to the Federal Act's deterring effect, noting that in the course of 2004, AOL and other Internet service providers filed many claims under the Act against large spammers in the United States. There is also significance to the fact that AOL is based in Virginia, the state with the toughest anti-spam law in the United States. Recently, spammer Jeremy Jaynes was convicted under the state act and sentenced to 9 years in prison.
Uncle Sam, Can You Please Take Out The Trash?
Anne Mitchell, executive director of the Institute for Spam and Internet Public Policy, notes in McGuire's article that even though no decrease has been noted in the quantities of spam in users' inboxes, this does not mean that the Federal Act is a failure. The Act grants plaintiffs effective tools to fight spam. Others, however, argue that legislation is not the solution to the problem. Spam is an industry conducted in the shadows and the technology at hand facilitates the disguise of the identities of key players. Experts in the field set their hopes on the resolution of the spam problem on technology and authentication techniques, which will make it difficult for spammers to hide behind borrowed or fake identities.
Until The Next Report
The FTC regulations do not provide an exact answer to the question of whether a certain e-mail message is a commercial message or not, because it is difficult to determine exactly what the recipient's reasonable answer would be regarding a certain message. However, these guidelines provide tools to assist in this effort and may improve the Act's efficiency in the regulation of spam in the United States. The FTC, together with the US Department of Justice, submit a report to Congress on the effectiveness and enforcement of this Act. The report should discuss the need, if there is one, for making changes in the Act due to new technological developments and to deal with spam transmitted through servers located outside the United States.
**Reprinted with permission from the Israel Bar Association Website (www.israelbar.org.il) where it was published on February 13, 2005. This article was originally published in Hebrew in NFC (www.nfc.co.il) on January 15, 2005. (http://www.nfc.co.il/archive/003-D-8704-00.html?tag=18-58-23)
Ms. Kagan specializes in Internet and IT law. Her articles on these subjects are published regularly in professional publications of the American Bar Association and the New York State Bar Association as well as in national Israeli websites. Ms. Kagan authored the Israeli Chapter in the book "Cybercrime and Security" published worldwide by Oceana Publications, a division of Oxford University Press. A graduate of the Law Faculty of Tel Aviv University, Ms. Kagan is a member of the Israel and New York Bars, is qualified as a Solicitor in England & Wales and is also admitted as legal practitioner in New South Wales, Australia.