|Received:||3/22/2004 10:21:56 AM|
|Agency:||Federal Trade Commission|
1/ Determining the "primary purpose" of an e-mail: if the e-mail contains ANY "call to action" with a purpose to move the reader toward a commercial relationship with the sender, where such relationship does not already exist, the e-mail is commercial (I would exempt 501c3 organizations). Any language that allows for determination of the 'primary purpose' will, by definition, be subjective and therefore enforcement will always be a problem. Make it black-and-white. 2/ B1: I think that messages that "deliver goods or services" should be defined explicitly to include affirmative consent publications such as newsletters (regardless of advertising content), thus making it clear that opt-in e-mail newsletters are permitted as transactional or relationship messages and are therefore exempt from the CAN-SPAM regulations. This is NOT a loophole because of the requirement for affirmative consent. 3/ B3 & B4: we have to allow businesses to communicate new offers to their customers; I think to shut this off completely is an unfair restrain of trade. There is a natural check-and-balance here; if customers get frustrated by the number of transaction or relationship e-mails they get that contain commercial messages, they can complain directly to the company or take their business elsewhere. 4/ D1: add (a) subject lines that contain gibberish or phrases that have no natural and obvious meaning to a reasonable person, (b) browser "hijacking" after completion of an online opt-out form. 5/ E1: Companies that advertise within an opt-in newsletter should not be considered "senders". If the consumer is offended by the presence of such ads in an opt-in newsletter, s/he should opt-out. 6/ E2: If your friends are constantly sending you e-mail you do not want, tell them to stop. There is no need to regulate the forwarding of e-mails; the person doing the forwarding is making the decision to do so, not the originating sender. This is a clear example of over-regulation! 7/ E3: Disallowing the use of P.O. Boxes seems to me to put an unfair burden on home-based businesses, that should not have to publicize their home address. 8/ A National Do Not Email Registry will be a national disaster, because people will expect this to stop SPAM, and it will not, and it will cost us millions to implement and maintain. It will also create enormous amounts of administration and bureaucracy to handle all of the complaints. Spend the money on enforcement instead (see next comment). 9/ By my own personal experience as a consumer, and from all I read as a professional B2B marketer, CAN-SPAM has not substantially reduced the amount of SPAM. Surely this is a critical measure of the [lack of] success of the law. Legitimate marketers (like my company) were not engaging in the use of SPAM anyway. The issue is enforcement! Spend your time finding ways to identify and prosecute the violators, instead of producing endless amounts of detailed regulations that only raise the cost of doing business for the organizations that are not the source of the problem in the first place. I think the basic idea of defining and outlawing SPAM is good - but now lets stop the bad guys and stop bogging the good guys down with ever more detailed regulations.