The 'Good News' and 'Bad News' about CAN-SPAM

28 May 2004

"The good news is that Congress finally passed a law on spam," attorney Mark Grossman told an audience while lecturing last week on the U.S. CAN-SPAM Act at the Global Interactive Gaming Summit & Expo in Toronto. "The bad news is that they legalized it."

He then proceeded to explain how the law is actually more of a trophy that policymakers can tout as proof they are fighting the battle than a tough piece of legislation that will come anywhere close to stopping the rising tide of bulk commercial e-mail.

In fact, CAN-SPAM doesn't outlaw spam, he said, but instead sets a national standard to which commercial bulk e-mailers should (not must) comply. After all, take a look at your inbox, Grossman beckons, and see how many of the messages comply with the standards set out by CAN-SPAM.

Grossman, a specialist in tech law who writes a column for the Miami Herald and serves as chair of technology law group Becker & Poliakoff, P.A., explained what the bill requires of e-mail marketers and provided a checklist that, if obeyed, would enable e-mailers to send massive amounts of e-mail.

"Don't alter the e-mail header or the 'from' line information, [and] don't use deceptive 'subject' lines," he added.

He also stressed the importance of including a valid return e-mail address and including a legitimate physical postal address of one's place of business. Functioning opt-out mechanisms are also necessary, but therein lies an area of much criticism.

Essentially, he pointed out, a spammer can bombard whomever he wants until the recipient opts out. But he also showed that consumers are probably reluctant to opt out.

"For years I've been telling people that they should never opt out of spam," Grossman said. "The reason has been that spammers have used the opt-out as a way of confirming that an e-mail address was a good one."

On May 19, two days after Grossman's CAN-SPAM lecture at GIGSE, another component of CAN-SPAM became law, requiring all pornographic bulk e-mails to contain the warning "SEXUALLY EXPLICIT" in their subject lines. There is no such requirement for gambling products, or any other products for that matter. It is not even necessary for a commercial e-mail from any source to include an alert such as "ADV" in the subject line.

But despite the fact that CAN-SPAM does prescribe some simple requirements, a survey of most over-flooded e-mail boxes should demonstrate how ineffective the mechanisms to enforce those prescriptions are.

And of course, there is nothing in the legislation that protects e-mail users from spammers based offshore.

As Grossman puts it, "If I were a spammer, I would set up offshore in some funky lawless jurisdiction, buy myself some computers, and spam the 'Do Not Spam' list."

Bradley Vallerius

Articles by Bradley P. Vallerius, JD manages For the Bettor Good, a comprehensive resource for information related to Internet gaming policy in the U.S. federal and state governments. For the Bettor Good provides official government documents, jurisdiction updates, policy analysis, and many other helpful research materials. Bradley has been researching and writing about the business and law of internet gaming since 2003. His work has covered all aspects of the industry, including technology, finance, advertising, taxation, poker, betting exchanges, and laws and regulations around the world.

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