The CAN-SPAM Act, which came into law the first of the year, may not have done much yet to halt the widespread spamming that haunts the Internet. But while it may not prevent porno-packing messages sent from offshore IP addresses, it will have an effect on your business. Scary? A bit.
But what's really frightening is that, according to a recent survey by hosting provider Interland, many of you aren't even aware that a law now exists that addresses online communications between you and your customers.
According to the survey of nearly 200 companies, 34 percent of small businesses owners have not heard of the CAN-SPAM Act and 29 percent have heard of it, but are unaware of how it affects their businesses.
The first thing you need to know about the CAN-SPAM Act, according to Jonathan Wilson, founding chair of the Internet Industry Committee for the American Bar Association, is that "it applies to everyone."
"It applies to any unsolicited commercial e-mail," he told ECommerce Guide. The act doesn't apply to "transactional messages." That is, the law's definition of spam does not include e-mail that is designed to confirm or facilitate a commercial transaction.
Some of the rules you must follow to comply with the CAN-SPAM Act include the following:
- You must provide a clear and conspicuous return e-mail address (i.e., a validate From line)
- You must offer a clear opt-out function
- The subject line must not be deceiving
- You must provide a valid physical address. Wilson added that "whether a PO Box is considered a physical address is not clear, so you should use a real street address."
Wilson said that it is also important to post your privacy policy outlining your compliance prominently.
There is a lot for small businesses to keep track of and Wilson recommends you review the Act with your attorney to ensure your compliance. Interland has also put together "A Small Business Guide to Understanding CAN SPAM Legislation," which you can find here.
The Act isn't designed to prevent legitimate businesses from using e-mail to communicate with customers. However, not complying could in theory land you in jail. "Don't expect officer Bob to knock on your door tomorrow. But [if you aren't in compliance], someday, someone will complain," Wilson said.
Customers or competitors can't go after you directly. However, ISPs, state attorneys general, the Federal Trade Commission can sue businesses under the act, Wilson said.
Of course, the larger question with the CAN-SPAM act is will it meet its objective to stop the pornographic, get-rich-quick, miracle drug e-mails everyone hates to receive? Probably not for a while.
To date, the courts are hardly backlogged with CAN-SPAM offenders. "There's no enforcement that I'm aware yet," Wilson said, "however, it will take some them for the FTC to do IP forensics [to track down offenders]." The fact a large percentage of spam originates outside of the U.S. further complicates the process.
"The act is a helpful first step, not the be-all and end-all. The bad actors are covering their trails. But now they are breaking the law."
What advice does Wilson have for legit small e-commerce businesses: "Small businesses never really thought about any of this. Go to FTC.gov and familiarize yourself with the act. Follow the rules."
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