March 12, 2004, 12:00 AM

FTC seeks comments on how to enforce CAN-Spam

As mandated by Congress when it passed the CAN-Spam Act, which went into effect Jan. 1, the FTC is seeking public input into the definition of e-mail spam. The FTC is also seeking input into how to enforce the law’s provisions.

As consumer ire over spam has risen, consumers’ definition of spam has gotten broader and broader. The Federal Trade Commission is hoping to put a rope around the definition so it can get on with the business of enforcing the CAN-Spam Act, which seeks to regulate the spread of unsolicited commercial e-mail.

As mandated by Congress when it passed the CAN-Spam Act, which went into effect Jan. 1, the FTC is seeking public input into that definition. “Since the CAN-Spam Act applies almost exclusively to commercial electronic mail messages, defining the criteria used to determine the primary purpose of an e-mail will clarify how to determine whether the act applies to certain electronic messages,” the FTC says.

Comments can be filed electronically through the federal government’s rulemaking web site, www.regulations.gov. The FTC has posted a web form at the site. Persons making comments may address as many or as few issues as they wish, or skip the form and write what they choose in a text box, or attach a separate document for submission to the record.

Among the areas the FTC is seeking to clarify:
• CAN-Spam exempts messages that complete or confirm a transaction that the recipient has entered into with the sender, such as order confirmation from a web retailer. The act gives the FTC the authority to modify the definition of a transactional message. The FTC seeks comment on whether it should exercise this authority, and if so, how.
• CAN-Spam requires that e-mailers allow recipients to opt out of receiving further commercial e-mail and senders must process such requests within 10 business days. The act gives the commission the authority to modify the 10-day period. The FTC is seeking comment on the reasonableness of the 10 days.
• The FTC seeks comment on which practices, in addition to harvesting of names and dictionary attacks which the act specifically prohibits, should be considered aggravated violations of the act. The law significantly increases the amount of damages a violator may be liable to pay for engaging in an aggravating violation while violating another provision of the act.
• The FTC is also seeking comment on whether additional regulations would be helpful. Specifically, the FTC is requesting comment on whether recipients who forward messages in “forward-to-a-friend” system are liable under CAN-Spam, whether multiple senders of a single e-mail are liable, whether post office boxes or commercial mail drops satisfy the act’s requirement that commercial e-mail messages include a valid physical postal address of the sender, whether the act’s treatment of “from” line information is sufficiently clear, and whether the act requires the “from” line to identify a sender by name.

Further, the FTC seeks comment on four reports it is required to issue to Congress:
• A report on establishing a nationwide Do Not E-Mail Registry, due June 16
• A report on establishing a system for rewarding those who supply information about CAN-Spam violations, due Sept. 16
• A plan for requiring commercial e-mail to be identifiable from its subject line, due June 16, 2005
• A report on the effectiveness of CAN-Spam, due Dec. 16, 2005.

Persons seeking to file comments at regulations.gov should select “Federal Trade Commission” under the “Search for Open Regulations” menu, click Go, then scroll down to the CAN-Spam section. Comments addressing the National Do Not E-mail Registry must be submitted by March 31. Comments on any other aspect of the act must be submitted by April 12.

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