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![Bennet Kelley Bennet Kelley is founder of the Internet Law Center in Santa Monica where he helps clients navigate the challenges of the digital economy. He has been active in many of the hottest Internet issues over the past decade including cyber squatting, internet marketing and promotions, online gambling, net neutrality, privacy and spam. Bennet will be Vice-Chair of the California State Bar's Cyberspace Committee and is a regular contributor to the Journal of Internet Law . Bennet worked in-house with companies such as ETM Entertainment Network, SpeedyClick.com and ValueClick prior to launching the Internet Law Center. The Internet Law Center’s newsletter, Monday Memo , recently was named one of the top 100 Internet Law resources. . Contact: Internet Law Center 100 Wilshire Blvd, Suite 950 Santa Monica, CA 90401 310-452-0401 [email_address] www.InternetLawCenter.net](https://image.slidesharecdn.com/can-spamat5bgk-110404031418-phpapp01/75/CAN-SPAM-at-5-25-2048.jpg)
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CAN-SPAM at 5
The document summarizes the CAN-SPAM Act of 2003, which establishes the national standards for commercial email. It prohibits fraudulent and deceptive email practices, requires the labeling of adult content, and includes provisions for an opt-out mechanism. The document also discusses related issues like preemption of state laws, plaintiffs under the Act, and liability for advertisers.
CAN-SPAM at 5
- 1.
- 2. In the Beginning. . .
- 3. There was California. . . 'We are saying that unsolicited e-mail cannot be sent and there are no loopholes . . . We don't differentiate between Disney and Viagra. If you go out and rent a list of e-mail addresses, by definition you are not a legitimate business. You are the person we are trying to stop.” Former California State Senator Kevin Murray Author of SB 186
- 4. 84 Days LaterC ontrolling the A ssault of N on- S olicited P ornography A nd M arketing Act Public Law 108-187
- 5. CAN-SPAM Act of2003 CAN-SPAM IS . . . An anti-fraud and disclosure statute Applies to an email where the “primary purpose” is commercial advertisement or promotion of a product or service No volume requirement CAN-SPAM DOES NOT . . . “ Can Spam” – except for wireless spam Include a “Do Not Email Registry” Impose an “ADV” labeling requirement Create a general private right of action
- 6. CAN-SPAM Principal RequirementsFrom line must identify initiator Subject line must not be deceptive. Adult Messages must provide notice. Postal Address for Advertiser Requires Working Opt-Out Mechanism for Advertiser UCE must be identified as “advertisement ”
- 7. FTC Discretionary RegsCAN-SPAM Plaintiffs State Law & Preemption Advertiser Liability California Amendments Topics
- 8. Regulatory Timeline 2004: FTC Final Rule on Adult Labeling FCC CAN-SPAM Rules 2005: FTC (1) Final Rule on Primary Purpose of Email; and (2) Proposed Discretionary Rules 2006 : 2007: 2008: FTC Final Discretionary Rules
- 9. Discretionary Regs Definitionof Valid Physical Address Accurately registered P.O. Box allowed Opt-Out Requests Conditions or Expiration Cannot impose any conditions on opt-out requests (e.g, fee or provide information) Abandons proposal to reduce processing time to 3 days Rejects call for expiration period for opt-out requests
- 10. Name must bein the “From” Line Must be Responsible for CAN-SPAM compliance Dropped requirement that Designated Sender be in control of the content or the mailing list used Must Be a Sender Under CAN-SPAM Cannot designate Non-Sender Designated Sender Rule
- 11. CAN-SPAM Plaintiffs FTCState AGs Internet Access Service Provider (IASP) Adversely Effected by Violation No Consumer Private Right of Action
- 12. Is the IASPRemedy a Trojan Horse? Hypertouch v. Kennedy-Western University Small, free service can qualify . Concern that Hypertouch is a professional plaintiff can only be addressed by Congress Opens door to litigation by anti-spam activists as faux-IASPs Hypertouch and its principal have filed approx. 40 cases under CAN-SPAM and/or California law
- 13. Is Gordon aProper Plaintiff? Gordon v. Virtumundo Continued to use other people's e-mail addresses to collect spam . . . for generating lawsuit-fueled revenue No harm related to Bandwidth Hardware Internet connectivity, network integrity Overhead, staffing or equipment costs
- 14. No! Not PlaintiffCongress had in mind – must demonstrate substantial harm Awards Defendant Attorneys’ Fees – suit “ill-motivated, unreasonable, and frivolous” Followed in Cal Federal Court ASIS Internet Services v. OPTIN Global (N.D. Cal. 2008)
- 15. Subliminal Message #2Golf is boring. Let’s talk about spam .
- 16. CAN-SPAM PREEMPTS ALL STATE REGULATION OF EMAIL EXCEPT STATE LAWS Regulating falsity or deception in email Not specific to email, including State trespass , contract , or tort law ; or Other State laws to the extent that those laws relate to acts of fraud or computer crime
- 17. Misrepresentation must bematerial States cannot dictate form of from line Cannot prohibit use of multiple domains. Not misleading to use non-corporate address where domain may be checked using “Who Is” State regulation must be based on traditional notions of fraud First Amendment requires that it not impinge non-commercial email
- 18. Preemption’s Back Door?Utah/Michigan Child Registry Laws Makes sending prohibited email a “computer crime” Free Speech Coalition, Inc. v. Shurtleff, Utah Federal Court refused to enjoin law finding it fell within exception for computer crime DOJ filed brief supporting this position New Colorado Spam Law Makes violation of CAN-SPAM a violation of state deceptive practices and computer fraud laws Is this a backdoor to creating private right of action under CAN-SPAM?
- 19. Lessons from theBeehive State Liabilities Exceed Income 2-1
- 20. “ Sender” LiabilityFTC unsuccessful in seeking strict liability Advertiser liable if “actual knowledge, or by consciously avoiding knowing” about affiliate violations Hypertouch v. Kennedy-Western University S trict anti-spam policies and policing of affiliates defeated allegation of intent. ASIS Internet Services v. Opt-In Global, Inc. No duty to investigate
- 21. AB 2950 Pushedby anti-spam activists who have filed over 100 suits Wish list Advertiser liability Prohibiting use of multiple domains Tactics to evade email filters Expand Plaintiffs to include District & City Attorneys Venue Restore Statute of Limitations to 3 Years VETO
- 22. AB 2950 Pushedby anti-spam activists who have filed over 100 suits Wish list Expand Plaintiffs to include District & City Attorneys Venue Restore Statute of Limitations to 3 Years
- 23. AB 2950 Pushedby anti-spam activists who have filed over 100 suits Wish list Expand Plaintiffs to include District & City Attorneys Venue Restore Statute of Limitations to 3 Years VETO
- 24. Cases Preemption OmegaWorld Travel, Inc. v. Mummagraphics, Inc ., 469 F.3d 348 (4th Cir. 2006) Free Speech Coalition, Inc. v. Shurtleff , No. 2:05CV949DAK, 2007 U.S. Dist LEXIS 21556 (D. Utah Mar. 23, 2007) Kleffman v. Vonage Holding Corp ., Case No. CV 07-2406GAFJWJX (C.D. Cal. May 23, 2007) Gordon v. Virtumundo, Inc ., Case No. 06-0204-JCC (W.D. Wash. May 15, 2007) Virginia v. Jaynes , No. 062388 (Va. September 12, 2008) IASP Standing ASIS Internet Services, v. Optin Global, Inc ., 2008 WL 1902217 (N.D. Cal. March 27, 2008 ) Gordon v. Virtumundo, Inc ., supra. Hypertouch v. Kennedy-Western University , 2006 WL 648688 (N.D. Cal. 2006) No Strict Liability ASIS Internet Services , v. Optin Global, Inc., supra. US v. Implulse Marketing , No. CV05-1285RSL (W.D. Wash. June 8, 2007) US v. Cyberheat , 2007 U.S. Dist. LEXIS 15448 (N.D. Ariz. 2007)
- 25. Bennet Kelley BennetKelley is founder of the Internet Law Center in Santa Monica where he helps clients navigate the challenges of the digital economy. He has been active in many of the hottest Internet issues over the past decade including cyber squatting, internet marketing and promotions, online gambling, net neutrality, privacy and spam. Bennet will be Vice-Chair of the California State Bar's Cyberspace Committee and is a regular contributor to the Journal of Internet Law . Bennet worked in-house with companies such as ETM Entertainment Network, SpeedyClick.com and ValueClick prior to launching the Internet Law Center. The Internet Law Center’s newsletter, Monday Memo , recently was named one of the top 100 Internet Law resources. . Contact: Internet Law Center 100 Wilshire Blvd, Suite 950 Santa Monica, CA 90401 310-452-0401 [email_address] www.InternetLawCenter.net
- 26. Future Presentations October14 Online Advertising’s Year of Living Dangerously , California State Bar Cyberspace Committee (webinar) November 3 Email Compliance: Foundation of Reputation & Deliverability , Direct Marketing Association (New York) November 21 Affiliate & Direct Marketing , PMA Promotion Marketing Law Conference (Chicago)
Editor's Notes
- #2 It’s a great movie, right from the opening when Meryl Streep says, “I got a spam from Africa.” What did you expect from someone from LA. We’re going to go over developments in CAN-SPAM now it has reached the mature age of 5. To understand CAN-SPAM, you helps to know some basics about its history and what it does and does not do. So let’s start at the beginning.
- #3 OK – not that beginning.
- #4 Yes – California 2003. The twilight of the Davis years. California passed a bill that would have shut down all email marketing in the US since it did not only require consent to receive the email It required consent for the ad itself. The act was based on a fundamental misunderstanding of how the market worked.
- #7 WHILE THE ACT AND THE FTC DETAIL WHAT CONSTITUTES WHEN AN EMAIL TRIGGERS THE PRIMARY PURPOSE RULE, THE EASIEST THING TO DO IS TO ASSUME CAN-SPAM APPLIES BECAUSE ITS REQUIREMENTS ARE SIMPLE DON’T BE DECEPTIVE IN YOUR SUBJECT LINES OR HEADERS HAVE A WORKING OPT-OUT METHOD IRONICALLY ENOUGH, THE ADVERTISER IS REQUIRED TO HAVE AN OPT-OUT LINK, BUT NOT THE MARKETER – ALTHOUGH THIS IS COMMON PRACTICE TO INCLUDE BOTH.
- #17Â CAN-SPAM PREEMPTS STATE LAWS THAT REGULATE COMMERCIAL EMAIL EXCEPT (1) STATE LAWS REGULATING EMAIL TO THE EXTENT IT PROHIBITS FALSITY AND DECEPTION (2) COMMON LAW CLAIMS (3) COMPUTER CRIMES