Slicing and Dicing Spam

A primer for sending and receiving e-mail solicitations

By Andrew Sussman, Michael Tuite and Doneld Shelkey of Buchanan Ingersoll PC

Spam – not to be confused with Hormel's SPAM – has been one of the more ubiquitous and meaty issues surrounding the Internet. Businesses across the board – even manufacturers – are being impacted by unsolicited e-mail.Whether your marketing department intends to use e-mail as a vehicle to reach new customers or if your company’s e-mail in-box is overflowing with time-wasting solicitations, spam can impact operations, productivity and efficiency on many levels.

The Unsolicited
When one thinks of spam, images of growth hormones, lovely vixens and low interest mortgage rates spring to mind.

State legislatures, however, have a more broad definition as to what constitutes spam. State statutes define spam as “mass, unsolicited, commercial e-mail” (UCE). The definitions for the elements of UCE vary from state to state, but “mass” and “commercial” are rarely problematic. The determinative issue is often whether the communication is “unsolicited.”

Many companies that engage in mass e-mailing campaigns rely upon third parties to collect names and format messages. These third parties often claim that they have received consent to use the e-mail addresses for solicitation, but may not actually adhere to the requirements of each state. Most laws require senders of UCE to maintain an “opt out” procedure, but various proposed laws have raised the question whether recipients should “opt in” to receiving UCE. Responsible companies should inquire about the collection practices and consent logging efforts to ensure that the receiver of the solicitation has indeed asked for it (or asked not to receive it).

It is important to note that sending UCE is not per se illegal, but this is an area of great uncertainty as UCE laws are rapidly developing. Companies must be careful and diligent to follow the status of legislative efforts and the evolving requirements to ensure compliance.

Some examples of requirements in different state laws include: providing a toll-free number that a recipient may call to remove his or her name from the mailing list; disclosing the business address of the company; maintaining a valid return e-mail address; and including certain content disclosures (such as California which requires “ADV:” in the subject).

Almost universally, UCE laws prohibit false and misleading UCE and messages, which falsify the message header information, sometimes referred to as “spoofing”. A number of states have also established a “private cause of action” enabling recipients of UCE in violation of the state’s laws to seek statutory penalties and/or attorney’s fees, which increases the risk of non-compliance.

A Few Tips
If your company intends to send e-mail solicitations, consider the following best practices:

• Ask to see the procedures of third parties that you intend to use for e-mail solicitation campaigns.
• Keep, or require the third parties to keep, records of the consent from each recipient.
• Insist on reviewing the message that will be sent in the form that it will be sent to recipients.
• Have the message reviewed by counsel to ensure statutory compliance.
• Maintain independent records as to whom advertisements are sent.
• Establish procedures for “opting out” of future solicitations.
• Do not make false or misleading statements and avoid deceptive message “headers.”
• Do not engage in e-mail “spoofing.”

By following the above practices, you greatly reduce the risks associated with engaging in UCE solicitations. Unfortunately for senders of valid direct marketing, unscrupulous behavior of a number of “spammers” has poisoned the waters for everyone.

How to Limit Your Daily Intake
What steps can one take to decrease the amount of spam received each day?

There is currently no federal legislation that prohibits an advertiser from sending spam. However, a bill was recently introduced in the United States Senate that would establish a “do not spam” list similar to the “do not call” list for telemarketers. The Pennsylvania legislature has also introduced legislation to establish a “do not open” list similar to the Commonwealth's “do not fax” list.

However, many experts, both legal and industry specific, feel that a “do not spam” list would, at best, be difficult to implement and even more difficult to enforce. In addition, the Senate recently passed the “Can-Spam Act of 2003” (a law originally introduced in 2001 and then again in 2003) which, enacted as law, would put restrictions on the ability to send spam lawfully.

To date, the primary protection for consumers against spam is state law. As of the date of this article, 36 states have enacted legislation that can be interpreted to regulate spam. Prohibitions contained in state statutes vary.

The most common provisions found in state statutes are “labeling provisions.” These statutes require senders to label commercial or adult e-mails with “tags,” such as “ADV” or “ADV-ADULT” in the subject line of the e-mail.

The purpose of this is to permit a recipient to apply filters to automatically remove the messages from his or her mailbox. Other state laws target deceptive spam, such as prohibiting messages with “spoofed” headers or false or misleading subject lines. Many state spam laws contain specific requirements for allowing a recipient to opt-out of receiving future communications.

Individuals cannot stop spam, but they may be able to reduce the amount they receive. Once an e-mail marketer identifies an active e-mail address, it is highly likely that the marketer will trade, sell or otherwise distribute the address to other mass marketers.

Therefore, the best way to avoid spam is to avoid having your e-mail address included on marketers' lists. Doing so, however, may be difficult because of deceptive practices used by some e-mail marketers.

Marketers often include “removal features” in their e-mails that purport to allow individuals to remove their name from the e-mail marketer's list and thereby avoid future e-mails. However, some e-mail marketers use removal feature to actually validate active e-mail addresses. Upon confirming that an e-mail address is active, the e-mail marketer will continue to send solicitations to the address, despite the “opt-out” request.

A Few More Tips
The best protection against spam is being practical in e-mail usage. The following practical tips may help individuals avoid spam:

• Keep your work e-mail address, or any other address that you cannot easily change confidential. Do not use your work e-mail address for Internet orders or on other online registrations. Maintain a separate, public, and preferably free, e-mail address for such matters.
• Change your “public” address when spam becomes unbearable.
• Report spam to your Internet service provider.
• Install and continually update anti-spam/filtering software.