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FTC wants to tweak CAN-SPAM Act

Seeks clarification on opt-out

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The US Federal Trade Commission (FTC) is consulting on proposed changes to the CAN-SPAM Act. These clarify the steps by which a recipient can opt-out of receiving spam, and reduce the time limit for honouring an opt-out request.

The CAN-SPAM Act, also known as the Controlling the Assault of Non-Solicited Pornography and Marketing Act, came into effect in January 2004.

Despite its name the CAN-SPAM Act fails to actually "can" spam. There is no ban on sending unsolicited commercial -mail or text messages. Instead, it requires that spam sent to consumers includes a means of opting-out of the mailing list used by the sender.

The Act also provides for a national Do-Not-Spam list, bans the sending of fraudulent emails or unmarked sexually oriented e-mails, and provides for civil and criminal sanctions for those spammers who breach the rules. The penalties may amount to fines of $6 million and five years in prison in the most severe cases.

Critics have accused the Act of being narrow and weak, accusations that may be hard to deny given that the US sends more spam than any other, according to a recent report by anti-virus firm Sophos.

Its April 2005 report claimed that the US was responsible for an average of 35.7 per cent of all spam caught in its filters between January and March this year – albeit down on last August's figure from Sophos, which suggested that the US was responsible for over 42 per cent of the world’s spam.

The FTC is in the process of making amendments to its rules for enforcing the Act and seeks comments on its proposals by 27 June.

These include clarifying the definitions of the terms “person” and “sender” – to help in cases where multiple parties are advertising in a single e-mail message – and “valid physical postal addresses”.

It is also proposing to shorten from 10 days to three the time a sender may take before honouring a recipient's opt-out request; and to ensure that when submitting a valid opt-out request, a recipient cannot be required to pay a fee, provide information other than his or her email address and opt-out preferences, or take any steps other than sending a reply email message or visiting a single web page.

© Pinsent Masons 2000 - 2005

See: Notice of Proposed Rulemaking (31-page PDF)

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