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December 30, 2003
(5:58 p.m. EST)
By W. David Gardner,
TechWeb News
Legitimate businesses face new state and federal anti-spam laws that take effect Thursday, and they raise new issues for businesses trying to use e-mail within the letter of the law.
The CAN-SPAM Act of 2003 may not have much impact on offshore operations, those beyond the reach of U. S. law enforcement, but the new law will have an impact on some respectable companies, said Charles Kennedy, a lawyer specializing in computer and communications law.
“A guy with a server in Antigua sending porn won't comply. But a U. S. bank offering credit cards will have to comply,” said Kennedy, an attorney in the Washington, D. C., office of Morrison & Foerster.
The legislation, signed Dec. 16 by President Bush, was aimed to eliminate the patchwork of states' anti-spam regulations. A particularly tough law in California is also scheduled to take effect Thursday, but the federal law will pre-empt most of the provisions of the anti-spam laws of California and other states, Kennedy said.
Kennedy said he has advised more than 200 clients -- all legitimate users and would-be users of e-mail messages -- to focus on two main issues regarding the new law. First, they must provide an “opt-out” -- an email or URL address users can utilize to stop the sender from sending future unsolicited messages. Second, there must be a label in the message specifying that the message is an ad or a solicitation.
“Everything is a little less confusing because of the federal law,” Kennedy said. “A big reason for the federal law was the confusion caused by the state laws. The states can still enforce some anti-spam (provisions) and state prosecutors can even use some parts of the federal law.”
Kennedy recommends that respectable operations sending legitimate e-mail should also acquaint themselves with European anti-spam regulations. “The Europeans,” he said, “are generally more aggressive about e-mail. If you are an American company, you have to be careful if you have an office or a server in Europe.”
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