Quarterly: Spring 2004 - GWCAR - Greater Washington Commercial Association of REALTORS

CBQ >> Spring 2004 Issue

Do-Not-Spam Basics

On Tuesday, December 16, 2003, President Bush signed S. 877, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or the "CAN-SPAM Act of 2003." The act creates a single national standard designed to control the growing problem of deceptive or fraudulent commercial e-mail.

This legislation was largely sought by retailers, marketers and Internet account providers seeking a single set of rules that would apply nationwide and pre-empt 35 state spam laws.

The act does not ban commercial e-mails, but outlines a series of practices that must be followed when sending commercial e-mails. The act does ban certain fraudulent or deceptive practices and criminalizes techniques used by spammers to avoid detection.

State laws exclusively regulating use of electronic mail to send commercial messages are pre-empted by the act. However, the act does not pre-empt state laws or portions of state laws that prohibit falsity or deception in any electronic mail message or attachment to such an e-mail.

What e-mails are covered?

The act applies to all "commercial e-mails," whether solicited or unsolicited. The act defines commercial e-mails as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service." While the act does not define "primary purpose" or "commercial product or service," the act does require the FTC to issue regulations by January 1, 2005 on how to determine the primary purpose of a message.

What information does the act require senders of commercial e-mails to include in their e-mails?

The act requires all commercial e-mails to include:

A legitimate return e-mail and physical postal address,

A clear and conspicuous notice of the recipient's opportunity to "opt-out" or decline to receive any future messages,

A mechanism that may be used or an e-mail address (active for at least 30 days after message transmission) to which a recipient may send a message requesting not to receive any future e-mail messages from the sender,

A clear and conspicuous notice that the message is an advertisement or solicitation, and

Clear notice in subject heading if messages include pornographic or sexual content.

Business relationships

The act does not exempt e-mails to recipients with whom the sender has a prior or existing business relationship, as many of the state laws do. Instead, the act exempts only "transactional or relationship messages" from complying with these practices.

A "transactional or relationship message" is an e-mail message the primary purpose of which is to:

Facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;
Provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
Provide information with respect to a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use of products or services offered by the sender to the recipient;
Provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled, or;
Deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.

Can the sender offer a menu of opt-out options?

Yes. A sender of commercial e-mails may give recipients a menu of options from which to choose the types of commercial e-mail they no longer wish to receive, as long as the menu includes an option to receive no further commercial e-mail communications of any kind from the sender.

Would e-mails sent by the listing agent or broker to a seller who has listed their property for sale, or by an agent or brokerage to a prospective buyer, be considered transactional or relationship messages?

In either case, as long as the broker or agent has established a service relationship with the client, such as listing the property for sale or entering into a buyer's broker agreement with an interested buyer, such communications between broker/agent and customer/client are OK. Other messages, such as those that solicit sellers or buyers who are not presently firm clients, are probably not.

[NOTE: Please read the proposed new Maryland Spam Deterrence Act that will likely go into effect later this year.]

VIRGINIA STATE SPAM LAW: It is illegal to send bulk e-mail containing falsified routing information if the sender thereby violates a provider's policies, or to distribute software designed to falsify routing information. A court may exercise personal jurisdiction over a nonresident who uses a computer or computer network located in Virginia. The law was amended in April 2003 to increase the penalties for sending a high volume of messages containing falsified routing information.

NAR's Field Guide to Do-Not-Call/Fax/Spam Laws is available online at www.realtor.org/libweb.nsf/pages/fg707.