Let's talk CAN SPAM

CheckboxEarlier this week I posted about the increased amount of B2B spam I’m receiving. One message is not a huge deal and I just delete and move on. But many folks are using marketing automation to send a series of emails. These emails often violate CAN SPAM in one way or another.
This has been the law for 13 years now, I find it difficult to believe marketers are still unaware of what it says. But, for the sake of argument, let’s talk about CAN SPAM.

What is CAN SPAM?

CAN SPAM is the US law regulating commercial email. It was passed and signed into law in 2003. It took effect Jan 1, 2004.
CAN SPAM is primarily enforced by the FTC, with the FCC having responsibility for email to certain domains. In 2005 FTC published clarifying rules to help businesses comply with the law.

What does it regulate?

CAN SPAM regulates commercial email. The act defines commercial email as:
The term “commercial electronic mail message” means 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).
Commercial electronic mail messages do not include “transactional” or “relationship” messages. These messages are defined as messages related to a specific transaction (such as receipts and warranty information) or related to a membership (such as a statement or renewal notice).

What are the requirements?

CAN SPAM is pretty simple in what it regulates.

  • Commercial mail cannot have any forgeries.
  • Every email must have physical address for the sender.
  • Every email must provide a way for the recipient to unsubscribe. There are a number of requirements around the unsubscribe process.
    • Users must be able to unsubscribe over the internet, either by replying to the mail or clicking on a link.
    • The reply address or link must be active and functional for at least 30 days after the email is sent.
    • Senders must not require payment for unsubscribes.
    • Recipients only have to provide their email address. They cannot be forced to supply any additional information.
    • Recipients cannot be required to send more than one email or visit more than one webpage to unsubscribe.
  • Unsubscribes must be effective within 10 days of receiving a request.
  • Unsolicited email is prohibited to wireless domains as defined by the FCC.
  • Advertising email must be clearly marked as advertising.
  • Sexually explicit email must be labeled with SEXUALLY EXPLICIT in the subject line.

These are pretty simple requirements. Note, that most of these apply to any commercial email, not just bulk or unsolicited email.

What are the penalties?

The law provides for fines and jail time. Fines can reach $16,000 per violation. Enhanced penalties, including treble damages and jail time, take effect if certain conditions are met. Some of these conditions include harvesting addresses, using false whois information, or making up email addresses.

Who enforces CAN SPAM?

CAN SPAM doesn’t have a private right of action. Enforcement is by federal or state agencies or commercial email providers. Some of the webmail providers have sued spammers for CAN SPAM violations. Mailbox owners, such as businesses, may have standing to sue for CAN SPAM. A series of cases brought by individuals has really killed the ability of individuals to sue under the act.

Is there more?

There is, and you can read the FTC summary if you’re interested. The FTC talks about primary purpose and what’s transactional and what happens when there is more than one sender for a message.

How can you comply?

Compliance is pretty simple. I recommend clients just follow the rules for every email they send out. The rules are so basic, that there is no harm in applying them to emails that might not be covered. I tell clients to do the following for all their commercial email:

  • Include your physical address in every email.
  • Provide a simple unsubscribe link in every email, even transactional ones.
  • Use a valid address in whois, and avoid privacy protection services for email domains.

That’s really CAN SPAM compliance in a nutshell.
For many of my B2B spammers these days, compliance seems overly difficult and complicated. Most of them don’t have unsubscribes. Almost none of them have a physical address in the mail. For the senders who harvested my address off LinkedIn, enhanced penalties apply. As a business owner I could probably successfully file suit against some of these spammers. But that seems time consuming and ineffective.
I’ve been trying to work out new ways to deal with this. I’m considering supplying links to some blog posts here. I may also include a proposal for them to hire me so I can help them send mail that complies with CAN SPAM.
 

Related Posts

Do you have an abuse@ address?

I’ve mentioned multiple times before that I really don’t like using personal contacts until and unless the published or official channels fail. I don’t hold this opinion just about resolving delivery issues, but also use official channels when reporting spam to one of my addresses or spam traps.
My usual complaints contain a plain text copy of the mail, including full headers and a short summary of the email address it was sent to. “This is an address that was part of a leak from…” or “This is an address scraped off my website. It’s been removed from the website since 2004” or “This address isn’t used to sign up for any mail.”
Sadly, there are a number of “legitimate” ESPs that don’t have or don’t monitor their abuse address. In some cases it’s an oversight or a break down of internal mail handling. But in most cases, it’s a sign that the ESP doesn’t actually handle abuse.
It’s frustrating to watch an ESP post long blog posts about “best practices” and “effective delivery” and “not spamming” and yet not be able to actually stop their own customers from spamming. It’s not even that I necessarily want them to disconnect their spamming customers (although that would be nice) but suppressing the address that I’ve told them was a spamtrap seems trivial. And yet, a month after my first complaint and weeks after escalating to a personal contact, I’m still getting spam.
The 5 things every ESP should do to handle spam complaints.

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3 new CAN SPAM cases

Xmission, a Utah ISP, has filed suit against 3 companies alleging violations of CAN SPAM. The cases were filed in the Utah District Court in April and June. I’ve downloaded some of the documents and complaints and they are now in RECAP. I’ve also included the complaints here (and the links from here on out are almost all .pdfs of the court documents).
Xmission v. Adknowledge (Case 2:15-cv-00277).
Xmission v. Clickbooth (Case 2:15-cv-00420).
Xmission v. Thompson and Company (Case 2:15-cv-00385).
In all the cases Xmission is alleging similar violations of CAN SPAM.
Falsified header information: part 1
Xmission asserts that the domains in the headers were spoofed, unregistered or belonged to an unrelated 3rd party. One of the complaints listed subject lines of the emails sent, so I dug through my spam folder for similar emails. I found a few examples of what I suspect are the spams mentioned in the suit.

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Don't like opt-outs? Target your program better.

I get a LOT of spam here. Most of it is marked and trivial to get rid of. Some of it is what I would call semi-legitimate. It’s a real product, but I never asked to receive any information from this company and am not actually part of their demographic. For one time things I just hit delete and move on. Life is too short to complain or opt out of every spam I get. (Tried that, got more mail)
But sometimes if the same sender keeps bothering me, I will send back an email asking them to cease contact. I recently had an occasion where someone sent an initial email trying to sell me bulk SMS, online video and other services. I ignored it because we’re not in the market for any of these services. A week later I get a followup asking why I hadn’t provided feedback to them and if there was a better person to talk to at the company. I looked for a way to opt-out of this message stream, but there wasn’t one. I send a reply telling them we were not interested in speaking to them and to please cease all communication. (“You didn’t receive feedback because I have no interest in talking to you. Please cease all future contact.” Admittedly that was terse, but it was polite.)
My request to cease communication was not well received, nor was it honored. Mind you, they first contacted me trying to sell me services that are totally off what we offer. When I asked them not to contact me, they turned it around that we’d lost business.

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