|Received:||4/20/2004 7:42:07 PM|
|Agency:||Federal Trade Commission|
Regarding the effectiveness and enforcement of the CAN-SPAM Act (See Section F. REPORTS of the Comment Form), many legitimate marketers selling real and legal products generally complied with most of these rules and regulations prior to enactment of the CAN-SPAM Act. Moreover, virtually all "permission-based" marketers complied with most of the rules and regulations required by the CAN-SPAM Act. Unfortunately, however, the CAN-SPAM Act does not appear to have had ANY impact on the volume of unsolicited and misleading e-mails. Until enforcement is effective, the CAN-SPAM Act will not accomplish many of the goals Congress implicit in the Public Policy statement set forth in Sec. 2 (b). Furthermore, the Public Policy itself crates a loophole for unscrupulous spammers. The CAN-SPAM Act does not purport to prevent all "unsolicited" e-mail. Rather, it proclaims, "recipients of commercial electronic mail have a right to decline to receive additional [emphasis on additional] commercial electronic mail from the same source." Limiting the CAN-SPAM Act to focus on the prevention of the receipt of “additional” commercial electronic mail limits the practical effectiveness of the Act. For example, from my reading of the Act, I do not believe an unscrupulous company would be prohibited from creating literally hundreds of “separate lines of business or divisions” (see Sec. 3 (16) (B)) and continuing to send the same unsolicited commercial electronic mail to the same recipients month after month after month (assuming it complied with other provisions, e.g., header and subject line requirements). Until that loophole is closed, the CAN-SPAM Act will not alleviate the most important problems identified by Congress in Sec. 2 of the Act. Specifically, Sec 2, subsections (2), (3), (4), and (6). Until the CAN-SPAM Act addresses the problems identified in these subsections, it will not have a meaningful impact on the lives of the majority of consumers or citizens of the United States.