CAN-SPAM: Does it apply to you?

Volume 28 Number 6

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By now, any bar leader with an e-mail account has become all too familiar with “spam,” unsolicited commercial e-mail that either wants to sell you some sort of body enhancement or let you in on a way to earn easy money. But not as many in the association vanguard know that a recently enacted law could have an effect on how they communicate with their members.

The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) regulates the sending of unsolicited commercial e-mail. While the law went into effect January 1, 2004, regulations that clarify some important specifics were left to the Federal Trade Commission to resolve. The FTC has yet to issue those recommendations. One thing that seems clear now is that there will not be a national “do not e-mail” registry. In a report issued in June, the FTC said there was too much risk that spammers would mine such a list for new addresses, thereby exacerbating the problem.

Of particular importance to bar leaders in the new regulations will be whether the FTC determines that CAN-SPAM provisions apply to not-for-profits communicating with their members. “There is disagreement regarding whether the Act is meant to apply to associations, such as bar associations,” says Justine Young Gottshall, a privacy and technology attorney with Chicago-based Wildman Harrold Allen & Dixon LLP.

“I believe that the Act as currently written does apply to associations. The Act does not specifically exempt associations or other types of organizations, and, in contrast to the regulations governing the Do Not Call registry, there is no exception for an ‘existing business relationship,’ ” Gottshall notes.

Even if associations are determined to fall under CAN-SPAM jurisdiction, not all e-mail to members will be the kind that is targeted by the law, Gottshall says. The Act regulates “commercial electronic mail messages,” she explains; these are defined as any e-mail “the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet Web site operated for a commercial purpose).” The Act also excludes certain “transactional or relationship” e-mails, Gottshall notes.

Much of the e-mail that most associations send to members is likely to fall into that excluded category, she says: “Most association e-mails that provide association-related information to members, which members have requested in connection with their membership, are likely not ‘commercial’ e-mails as defined by the Act.”

Those of a more commercial nature—that promote a book or a travel offer for members—could be considered commercial e-mail under CAN-SPAM and be required to meet the law’s provisions, Gottshall says.

If an e-mail does fall under the law, then there are three major requirements for its content, says Patricia Larson, associate general counsel for the ABA.

“There must be a clear and workable way of opting out,” Larson says. While people are generally advised not to respond to opt-out messages—which often are used by spammers to determine that they’ve sent mail to a valid address—the new law makes that use illegal, and requires commercial e-mailers to allow people to opt out from receiving further e-mails, and also requires that those who opt out be removed from mailing lists within 10 days, she says.

Commercial e-mail “has to contain a postal address, so people can know where you are and how to find you if there is any problem,” Larson says.

Lastly, CAN-SPAM requires such e-mail to “have a clear indication that it’s a commercial advertisement.” The subject doesn’t have to start with “ADV,” as some commercial messages do, Larson says. “I would argue that a message titled ‘Upcoming CLE’ is clear enough that it’s an advertisement,” she notes. “The idea is that somebody can look at the e-mail and decide if they want to continue or not.”

Many bar associations have turned to e-mail as an effective, relatively inexpensive way to communicate with members, especially in light of the Do Not Fax law that was originally intended to go into effect in August 2003, but was postponed until January 2005.

Most bar associations seemed more upset by the proposed fax rules than they do by CAN-SPAM, says Elizabeth Derrico, associate director of the ABA Division for Bar Services. When CAN-SPAM first came out, there was a lot of talk about it on association-related message lists, but that has quieted down, Derrico notes. She is on a number of mailing lists from bar associations, and notes that most of them that send commercial e-mail include the three required components of CAN-SPAM.

Reactions among a handful of associations varies. At the State Bar of Arizona, “We have not had any formal structure” put into place as a result of CAN-SPAM, says Matthew Silverman, the bar’s director of communications. While he believes that SBA e-mails generally meet the standards established by CAN-SPAM, the association as a whole has not formally adopted a policy, “and perhaps it’s time we do.”

Sam Lipsman, director of publications at the Los Angeles County Bar Association, says his bar thinks it’s “pretty clear” that, as a voluntary bar, e-mailing its members is not subject to CAN-SPAM. The LACBA does include an opt-out provision in its e-mails, and when marketing to nonmembers includes “ADV” in the subject line, Lipsman says.

The ABA took a more formal approach to the situation, conducting an informational session for staff and adopting an e-mail policy that not only addresses CAN-SPAM, but also the irritation that a high volume of e-mails can cause members. Larson was among the staff members who spoke at the staff meeting, and Gottshall addressed the group as well.

All e-mail addresses that the ABA has in its member database have been furnished by the members themselves, notes Jennifer Nelson, ABA director of member communication and retention. Members can opt out of either promotional and marketing materials only, or all ABA e-mail, Nelson says.

Regardless of whether CAN-SPAM is found to apply to associations, its requirements coincide with good business practices, Nelson notes. Giving members the information they want, and making it easy for them to tell you what they don’t want, tends to make for happier members, she says.

The FTC had a comment period for the regulations behind CAN-SPAM, including a hoped-for definition of which businesses (and which e-mails they send) are covered by the law, according to Chris Merida, public policy manager for the American Society of Association Executives. ASAE has submitted comments to the commission, Merida says.

ASAE has been advising its members to adhere to the requirements of CAN-SPAM. Until it is clear what is covered by the regulations, it makes sense to follow the guidelines, he explains.

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