The New Can-Spam Act and Attorney Communications
Avoiding the Ethical Traps
TABLE OF CONTENTS
I.
Biographies
a.
b.
c.
d.
e.
Daniel Appelman
L. Elizabeth Bowles
William R. Denny
Michael Fleming
Henry L. Judy
II.
What Every Attorney Should Know About Spam
By L. Elizabeth Bowles
III.
Electronic Communication by Lawyers: Navigating the Intersection of the
Ethics Rules and the CAN-SPAM Act of 2003
By William R. Denny
IV.
Ethics and Can-Spam – PowerPoint Presentation
V.
The Can-Spam Act of 2003 (Available on CD-Rom)
Menlo Park
DIRECT: (650) 324-6706
FAX: (650) 324-0638
[email protected]
Daniel L. Appelman, Shareholder
Intellectual Property Transactions
Corporate Securities, M&A
Venture Law Group
Life Sciences
Technology
Private Equity
Daniel Appelman joined Heller Ehrman in
1988. He is a member of the firm’s Life
Sciences & Technology National Practice
Group, as well as the Corporate Securities,
M&A National Practice Group; and he was the
founding co-chair of the firm’s technology
practice.
EXPERIENCE
Mr. Appelman's practice focuses on complex
technology-related transactions and strategic
alliances, particularly in the semiconductor,
networking, software, telecommunications,
electronic commerce and Internet areas; and
also in biotechnology, bioinformatics and
medical devices. He has over twenty years of
experience representing both early stage and
established companies in licensing, joint
ventures, technology transfers, outsourcing,
system acquisitions and other commercial and
strategic transactions in the United States and
abroad and in establishing intellectual
property rights related to their inventions. He
also counsels clients on emerging legal and
regulatory compliance issues, including
privacy, export control, data security and
digital content rights management.
Mr. Appelman has published articles on
computer and telecommunications law and the
law of electronic commerce, and he has
frequently lectured on legal developments in
those fields. He currently serves as chair of
the California State Bar’s Cyberspace Law
Committee and as an Advisory Member of the
Entrepreneurs Forum of the Haas School of
Business at the University of California at
Berkeley.
L. Elizabeth Bowles
President, Aristotle.Net Inc.
Elizabeth Bowles became President of Aristotle.Net Inc. in June of 2003. She is responsible for the
company’s direction and vision, as well as constructing its business plan. Prior to becoming president,
Elizabeth served as Vice President and General Counsel of Aristotle, Inc. In that capacity, she
represented Aristotle in all legal, intellectual property/technology matters, and contract negotiations.
Elizabeth has been integral in the development of Aristotle’s business relationships, including
partnerships, investments, and joint ventures. Elizabeth also served as a Web site consultant and client
manager for a number of Aristotle Inc.’s larger clients, including Elvis Presley Enterprises, Stephens Inc.,
and Brinker International (Macaroni Grill and Chili’s).
Elizabeth graduated summa cum laude with a 4.0 G.P.A. from the University of Arkansas at Little Rock
with a B.A. in International Studies. Elizabeth went on to receive her Doctorate of Jurisprudence from
the Vanderbilt University School of Law in 1993, where she was first in her class. She was awarded the
Founder’s Medal for the Class of 1993 and graduated Order of Coif. She served as Special Project Editor
of the Vanderbilt Law Review, was a member of the 1993 champion National Moot Court Team, and
served as Executive Editor for the Vanderbilt International. Elizabeth received the top score on the
Arkansas Bar Exam in 1993.
Following law school, Elizabeth clerked for Richard S. Arnold, then Chief Judge of the United States Court
of Appeals for the Eighth Circuit. Following her judicial clerkship, she was an attorney with the
Washington, D.C. law firm Arnold & Porter, where she practiced in the fields of intellectual property and
commercial litigation with an emphasis on international and technology law. Elizabeth is licensed to
practice law in Washington, D.C. and Arkansas, as well as before the Supreme Court of the United States
and a number of U.S. Courts of Appeals.
L. Elizabeth Bowles Biography
1
Last Update 7/8/2004
William R. Denny, Partner
(302) 984-6039
Email
Background
Born in Charlottesville, Virginia, January 11, 1961. Admitted to bar 1988, Delaware.
Education: Princeton University (AB, cum laude, 1983), History and Russian Studies;
Helsinki University; University of Virginia School of Law (J.D., 1987). Member:
Delaware State and American Bar Associations; Computer Law Association; Christian
Legal Society.
Areas of Practice
Mr. Denny practices primarily in the areas of electronic commerce, information
licensing, and commercial litigation. Mr. Denny has represented both public and
privately held companies in a wide range of technology and intellectual propertyrelated transactions, including outsourcing of IT services, mergers and acquisitions,
technology licensing, sales of Internet domain names, and the development of ecommerce on Web sites. His clients include major licensees of information technology
as well as Internet service providers, software developers and system integration
service providers.
Mr. Denny's litigation experience includes litigating disputes over the interpretation and
enforcement of liability insurance contracts and software licenses in both federal and
state courts, and litigating preference, turnover and fraudulent conveyance actions in
bankruptcy court. Mr. Denny has tried jury and non-jury cases in federal and state trial
and appellate courts, before arbitration panels, and by use of other alternative dispute
resolution techniques.
Recent Activity
In 1997, Mr. Denny successfully represented a major Fortune 100 corporation in a two
month jury trial over insurance coverage for mass-tort product claims. In that case, the
jury returned all special verdicts in favor of the corporation, on issues of trigger of
coverage and numerous insurance policy defenses. In 1998 and 1999, Mr. Denny
represented several major corporations in complex-multi-party mediation over
insurance coverage for mass-tort claims involving pharmaceutical products. The
mediation resulted in the successful resolution of numerous issues outside of litigation.
More recently, Mr. Denny has represented major corporations seeking to recover their
Year 2000 remediation costs from their property insurance carriers.
Mr. Denny has counseled dozens of clients on issues relating to the Year 2000
computer problem. These issues have included review of legal liability issues and
updating of standard contract provisions, assessment and remediation of noncompliant computer systems, information sharing and risk allocation among supply
chain business partners, insurance coverage review, and development of contingency
plans.
Publications &
Seminars
"Electronic Contracting in Delaware: E-Sign and UETA", Delaware Law Review,
Winter 2001
"E-Sign, UETA and UCITA," Advanced Computer and Internet Law Institute,
sponsored by Georgetown University Law Center, March 8-9, 2001
"El
t
i Si
t
i C b
l
i
" ABS
th W b S
iti
ti
Technology and the Internet, sponsored by Strategic Research Institute, March 5-6,
2001
"The ABCs of UCITA," E-Commerce Law Institute, Vail, CO, sponsored by Law
Education Institute, Inc., January 10-15, 2001
"Legal Status of Electronic Contracting Under New Federal and State Law," ECommerce: The Law of E-Business, sponsored by CLE International, May 8-9, 2000
"Limiting Vicarious Liability for Employee Fraud," Protecting Electronic Information,
Economic Crime Investigation Institute Tenth Annual Conference, Nov. 1999
"The Year 2000 in the Delaware Corporate Boardroom," Andrews Year 2000 Law
Bulletin, Sept. 1999, co-authored with Gregory A. Inskip and Peter J. Walsh, Jr.
"The Year 2000 In Delaware — A Legal Forecast," Mealey's Year 2000 Law Reporter,
Vol. 2, No.4, May 1999, co-authored with Gregory A. Inskip and Laurie S. Silverstein.
"Vendor Compliance Issues and Insurance Coverage Issues Related to the Millennium
Bug", New Castle County Chamber of Commerce Business Technology Conference,
April 21, 1999.
"Online Issues in Corporate Law: The Impact of New Technology on Investor
Relations", Tulane Corporate Law Institute, March 4-5, 1999, co-authored with Michael
D. Goldman, Michael A. Pittenger, and Eileen M. Filliben.
"Update on Coverage Claims Arising From Recent Underlying Liabilities: Fen-Phen",
Mealey's Conference on Emerging Insurance Battles, March 1-2, 1999, co-authored
with Richard L. Horwitz.
"Insurance Coverage for Year 2000 Losses", Delaware State Bar Association
Seminar: Year 2000 Litigation in Delaware Courts, February 24, 1999.
"Insurance Claims and Litigation", Delaware State Bar Association Seminar: Year
2000: Beyond the Hype, February 5, 1999.
"Introduction to Year 2000 Legal Issues", Delaware State Bar Association Seminar:
Technology and the Law, January 19, 1999.
"UCC Update: Recent Case Developments and Code Revisions, Overview of
Proposed UCC Article 2B", Johnson Controls, Inc. Seminar, Milwaukee, WI,
September 23, 1998.
"The Year 2000 Crisis: Practical Issues Affecting Business", Delaware State Chamber
of Commerce Business Journal, March 1998.
"The State of Contract Law and Intellectual Property Law on the Internet", Delaware
State Bar Association Seminar on Computer Technology Issues, December 6, 1996,
co-authored with William J. Marsden, Jr.
"Internet and On-Line Transactions: Access Contracts Under Current Law And Under
The Proposed UCC Article 2B", ABA Annual Meeting, Orlando, FL, June 27, 1996.
P
f
i
l
Withi th ABA M D
i Vi
Ch i
f th ABA B
i
S
ti
' S b
itt
Activities and
Affiliations
on Information Licensing. He has been an active participant at meetings of the
National Conference of Commissioners on Uniform State Laws relating to the drafting
of the Uniform Computer Information Transactions Act (UCITA). Mr. Denny was the
Chair of the Delaware State Bar Association's Joint Task Force to review UCITA and
the Uniform Electronic Transactions Act, which resulted in the Delaware State Bar
Association's endorsement of both uniform acts. He serves as Chair of the Delaware
State Bar Association Computer Law Section and has served as Co-Chair of the
DSBA Committee on Professional Ethics. Mr. Denny is fluent in Finnish and has a
reading knowledge of Russian.
Michael F. Fleming
FAEGRE & BENSON LLP
Michael Fleming practices in Faegre & Benson’s intellectual property and
information technology transactions groups. Michael was formerly the primary
corporate counsel for intellectual property, advertising and marketing, in-store
risk management, e-commerce and information technology at The Musicland
Group, Inc., a Twin Cities based national retailer.
Technology Transactions and Electronic Commerce. Michael’s primary practice
concerns assisting his clients in their licensing – as buyers or as vendors – of
business technology systems. This ranges from drafting form software license
agreements for off-the-shelf licensors, to the negotiation of a complex contract for a new customdeveloped system, to the development of an outsourcing program for a primary business function.
Many of his clients use his expertise in specialized industries such as financial institutions and
health care, which both have heightened concerns over data privacy and security as well as liability
issues. Those same issues are not just limited to banks and hospitals, but have also become issues
for nearly every employer, retailer and general business – and Michael also looks for places to
apply knowledge from the specialized industries to help his other clients as well.
Michael has also assisted businesses as part of the firm’s merger and acquisition team, assisting in
the assessment of a company’s intellectual property assets and the negotiations concerning the
terms of sale of those assets.
Michael advises operators of Web sites, Internet Service Providers, hosting services, application
services providers and other electronic commerce outlets. Issues include advertising and marketing
practices, privacy policies, sales terms and warranty policies, Digital Millennium Copyright Act
enforcement and response, privacy-brand affiliations and memberships, and linking and referral
fee agreements. He has also advised on volatile electronic commerce legal issues such as patent
disputes, digital downloading, e-mail marketing and anti-spam laws, telemarketing, data privacy
and data sharing, sales taxes, and commercial e-mail marketing.
In 2003, Michael was appointed as co-chair of the subcommittee on Corporate Aspects of
Information Technology, a part of the Cyberspace Law Committee of the American Bar Association.
Through “CAIT,” Michael has joined with attorneys from around the country and the world to
develop commentary and practice recommendations for businesses that use technology – such as
electronic contracting, privacy and data security, and IT purchasing.
Michael served as Adjunct Professor at William Mitchell College of Law from 2001-2003, teaching
subject matter relating to his technology practice.
Other Practice Areas. Michael also advises retail and institutional clients on marketing and
advertising issues, ranging from advice on a corporate advertising compliance program to spotchecking particular advertising issues. Michael has advised many clients on how to set up sweepstakes
and contests that are compliant with the arcane laws in that area.
continued
FAEGRE & BENSON LLP
MICHAEL FLEMING
Michael continues to advise clients in the retail business, including vendor contracts, in-store
marketing, intellectual property compliance programs, payment-tender methods such as credit
cards, debit cards and stored-value cards (gift cards), unclaimed property and, private branding.
Michael also maintains an active practice in the entertainment law field. He has managed legal and
business affairs for a small record label, has advised on the emerging fields of digital music
distribution over the Web, and also assists musical artists, composers and producers with their
needs.
Publications:
n
n
n
n
n
n
n
n
Publication update – DMCA Safe Harbors May Require Careful - If Not Strict - Compliance
Media Law Resouces Center MediaLaw Letter (2004)
Sarbanes-Oxley and IT: Beware of Magic Bullet Solutions
Trends (Faegre & Benson) (2003)
Technology Toys for Attorneys: A Means to Ethical Violations?
Hennepin Lawyer (2002)
Have You Built Advertising Law into Your Web Site?
Intellectual Property Counselor Issue No. 58 (2001)
How to Prepare for Electronic Discovery Before the Lawsuit Arrives
Hennepin Lawyer (2000)
The Question That Nobody Wants Answered: Would a Government Mandated
Entertainment Ratings Systems Pass Constitutional Muster?
MSBA CLE Arts and Entertainment Section (2000)
Non Traditional Revenue Sources and Pitfalls for the Musical Artist
MSBA CLE Arts and Entertainment Section (1999)
The Compilation CD, a ’How To’ Primer
MSBA CLE Arts and Entertainment Section (1998)
Speeches:
n
n
n
n
n
A Legal Checklist for Your Advertising Campaign
Minnesota CLE (Advertising Law), Minneapolis (2004)
CAN-SPAM – A Compliance Program for Law Firms
American Bar Association Annual Meeting, Atlanta (2004)
Privilege in Peril: Avoiding Inadvertent Waiver Through Use of Technology (Panel
Presentation)
BNA Electronic Discovery, New York, NY (2003)
Minnesota’s New Anti-Spam and Internet Privacy Statutes
Minnesota CLE (Computer Law), Minneapolis (2002)
“Oops – I Did It Again” – Use of Technology in Legal Practices (Panel Presentation)
American Bar Association Annual Meeting, Washington, DC (2002)
PAGE TWO
FAEGRE & BENSON LLP
MICHAEL FLEMING
n
n
n
n
n
n
n
n
n
P3P - A New Privacy Technology for Web Site Operators
MILE (Electronic Commerce), Minneapolis (2001)
Advertising Law for Web Site Operators, Speaker and Co-Chair
MILE (Advertising Law) (2001)
Hot Spots in Software and Technology Contracts
Defense Research Institute, Chicago, Ill (2001)
ASP Contracting Issues
American Bar Association, Business Law Section, Philadelphia, PA (2001)
Electronic Discovery-Corporate Preparation
American Bar Association, Litigation Section, Orlando, FL (2001)
New Business Models for Affiliate Marketing
Minnesota CLE (E-Commerce), Minneapolis (2001)
The Merger of Clicks and Bricks (Legal Issues for E-tailing by Traditional Retailers)
Minnesota CLE (E-Commerce), Minneapolis (2000)
An In-House Perspective On Electronic Discovery
Glasser Legal Seminars, Chicago, San Francisco (2000)
Digitally Downloaded Music Business Models and Issues
MILE (Electronic Commerce), Minneapolis (2000)
Professional and Trade Associations:
n
n
American Bar Association; Business Law Section (Cyber-Space Law Committee)
Chair, Subcommittee on Corporate Aspect of Information Technology (2003 )
Minnesota State Bar Association, Arts & Entertainment Law Section, Chairman (20012002); Vice Chairman (1999-2001; Secretary (1997-1999)
Media Mentions:
n
n
Minneapolis Star Tribune, “California’s New Anti-Spam Law”
(October 25, 2003)
Upsize Magazine, “Federal Do Not Call Statute”
(October, 2003)
FAEGRE & BENSON LLP
PAGE THREE
MICHAEL FLEMING
Admitted to Practice (State):
n
Minnesota
Practice Areas:
n
Intellectual Property
n
Information Technology and Technology Outsourcing
n
Advertising and Marketing
n
Retail
n
E-Commerce
n
Entertainment
Education:
n
B.A., University of Minnesota (1987)
n
J.D., William Mitchell College of Law (1992), magna cum laude
041704v1
FAEGRE & BENSON LLP
Michael F. Fleming
Direct Dial 612.766.6920
90 South Seventh Street
Minneapolis, Minnesota 55402-3901
Telephone 612.766.7000 Facsimile 612.766.1600
www.faegre.com E-mail [email protected]
PAGE FOUR
FAEGRE & BENSON LLP
Henry L. Judy
Of Counsel
AREAS OF PRACTICE
WASHINGTON OFFICE
1800 Massachusetts Ave., N.W.
202.778.9032
TEL
202.778.9100
FAX
[email protected]
Advises clients on a wide range of corporate, commercial and financial law matters, as
well as Federal and state securities, legislative and regulatory matters, with a particular
emphasis on financial institutions, housing finance and technology and e-commerce law.
Legislative and regulatory practice emphasizes issues affecting the structure and
regulation of financial services firms. Technology and e-commerce practice emphasizes
all aspects of electronic commerce law, including federal, state and global privacy and
information security law. Privacy and information security practice focuses on financial
services and web-based enterprises. Provides counsel to the firm with respect to its own
technology contracting.
PROFESSIONAL BACKGROUND
Committee on Banking Law and Committee on Cyberspace Law, Section of
Business Law, American Bar Association
Computer Law Association
International Bar Association
PROFESSIONAL/CIVIC ACTIVITIES
Co-Chair, Program and Publications Subcommittee, ABA Cyberspace Law
Committee
Advisory Board, Shidler eJournal of Law, Commerce and Technology, Shilder
Center for Law, Commerce and Technology, University of Washington Law School
Editorial Advisory Board, Electronic Banking Law and Commerce Report
Co-chair, ABA Cyberspace Law Committee Task Force on Online Alternative
Dispute Resolution
Co-Chair, Working Group on Financial Services, ABA Report on the Global
Jurisdiction Issues of the Internet—“Achieving Legal and Business Order in
Cyberspace”
Federal Home Loan Mortgage Corporation, Executive Vice President and General
Counsel
Federal Home Loan Bank Board, Deputy General Counsel, Associate General
Counsel and Assistant General Counsel
Savings Institutions and Mortgage Lending Committee - Section of Business Law International Bar Association, Past Chairman
U.S. Securities and Exchange Commission, Administrative Officer, Division of
Trading and Markets
Frequent lecturer at trade association and professional association conferences
BAR MEMBERSHIP
District of Columbia
Maryland
EDUCATION
J.D., Georgetown University Law Center, 1968
A.B. (Classical), Georgetown University, 1961 (Woodrow Wilson Fellow)
Kirkpatrick & Lockhart LLP
Henry L. Judy
Graduate work in History and Economics, Cornell and George Washington Universities
Program for Management Development, Harvard Business School, 1980
SELECTED PUBLICATIONS AND PRESENTATIONS
Articles
Records Management of E-Mail by Securities Firms: Legal Compliance Technology
Issues, Wall Street Lawyer, by Henry L. Judy, Benjamin S. Hayes. October 2002.
Emerging Trends in International Privacy Law, Emory International Law Review, by
Jeffrey B. Ritter, Benjamin S. Hayes, Henry L. Judy. April 1, 2001.
Between a Rock and an Unsafe Harbor-Options for Compliance with the EU Data
Protection Directive, Electronic Banking Law and Commerce Report, by Henry L.
Judy, Benjamin S. Hayes. March 2001.
The ABA’s Project on Jurisdiction and the Internet: Banking and Payment Systems,
Electronic Banking Law and Commerce Report, by Henry L. Judy. December
2000/January 2001.
Books
Privacy, Computer Security Handbook, by Jeffrey B. Ritter, Henry L. Judy,
Benjamin S. Hayes. October 1, 2001.
Client Alerts/Updates
Standard Contract Clauses under the EU Data Protection Directive, Electronic
Commerce Alert, by Henry L. Judy, Benjamin S. Hayes, Jeffrey B. Ritter. February
26, 2001.
Presentations
Homeland Security, Information Security and New Technologies, Financial
technology Forum, February 2003
Emerging Trends in Global Privacy Law, presented to The International Information
Integrity Institute, June 21, 2000, by Jeffrey B. Ritter, Benjamin S. Hayes, Henry L.
Judy. June 2000.
OTHER
Served as artillery officer in US Army; awarded Army Commendation Medal.
Married; three children.
What Every Attorney Should Know About Spam
L. Elizabeth Bowles
President
Aristotle.Net Inc.
May 2004
When the exciting potential of the Internet was just being discovered, no one
dreamed that one day the phrase “You’ve got mail!” would come to mean “You’ve got
spam (and lots of it).” Today over 60% of e-mail received in consumers’ inboxes is
spam, more formally known as unsolicited commercial e-mail (UCE).1 And this
percentage keeps growing. Annoying, bothersome, irritating, distracting, and
expensive, spam cost U.S. businesses almost 10 billion dollars last year. Consumers
hate it, ISPs pay for it, and businesses lose time and productivity over it. Spam
threatens to bring to a screeching halt the Internet (and e-mail) as we know it.
What is Spam?
The FTC defines spam as any “unsolicited commercial e-mail,”2 and this is
also the commonly understood definition of spam.
This is what consumers mean
when they discuss spam, what ISPs refer to when they filter spam, and what
businesses are opposed to when it comes to spam.3 The vast bulk of spam coming
into mailboxes today is financial in nature and from legitimate institutions (for
example, home loan rates), but unsolicited.4 Non-fraudulent marketing efforts (not
including pornography) account for 77% of the spam volume today.5
1
State v. Heckel, 143 Wash.2d 824, 24 P.3d 404 (2001), for a definition of UCE.
2
“You’ve Got Spam: How to ‘Can’ Unwanted E-mail,” FTC FACTS for Consumers.
3
Some businesses that mine their customer databases would like to alter that definition of
spam to include only those unsolicited e-mails that are fraudulent. (“Spam White Paper,”
Internet Alliance at p.4.) The Internet Alliance is a trade association that represents
Internet companies active in the business to consumer channel. Its salaries are paid by the
Direct Marketers Association. Defining spam to include only fraudulent e-mail does not
resolve the problem most consumers and businesses are facing. In fact, only 5% of the UCE
received by Internet users is fraudulent; therefore, limiting the definition to fraudulent email would do little to help consumers, businesses, or ISPs staunch the flood of spam.
4
Brightmail, “The State of Spam Impact and Solutions.” Jan. 2003.
5
Id.
1
A Little History
Why is UCE called “spam?”
Blame the lawyers. In 1994, two Phoenix
lawyers hired a programmer to write code to send a message to every newsgroup on
USENET concerning their services in a United States green card lottery. Each of the
thousands of newsgroups, and therefore each member of each newsgroup, received
the message. These tens of thousands of participants started calling the commercial
message “spam” in honor of the famous SPAM® skit by the British comedy troupe
Monty Python. In this skit, every menu item included SPAM® luncheon meat,
whether or not the customer wanted it.6
The term “spam” has now come to mean
something that a person has not asked for but that nonetheless annoys by repeating
and repeating.7
What is Not Spam
Spam is unsolicited commercial e-mail, which means that the e-mail must be
both commercial in nature and unsolicited in order to qualify. A newsletter
distributed by a company to those who request it is not spam because such e-mail is
not unsolicited. Unsolicited e-mails sent by individuals as a form of personal
communication are not spam because they are not commercial. The gray area, email sent to customers with whom a business has an on-going commercial
relationship, may be both unsolicited and commercial but should not rise to the level
of spam so long as the recipient has the opportunity to prevent further unsolicited email communications through a valid unsubscribe mechanism.
6
7
2 Graham Chapman et al., The Complete Monty Python's Flying Circus: All the Words 27
(Pantheon Books 1989). When the waitress explained the menu, a group of Vikings (don't
ask) in the corner started singing: "Spam, spam, spam, spam, spam, spam, spam, spam,
lovely spam! Wonderful spam!"
Hormel Foods Corporation, which debuted its SPAM® luncheon meat in 1937, no longer
objects to the use of spam to refer to UCE, and even has its own website, www.spam.com.
Laurie J. Flynn, Gracious Concession on Internet "Spam," N.Y. Times, Aug. 17, 1998, at D3.
2
The Trouble with Spam
So what is the scope of the problem? According to Brightmail, an anti-spam
filter provider, nearly 40% of the e-mail received by U.S. inboxes in 2002 was spam.
In the first quarter of 2003, this figure had risen to 45%.8 Currently spam accounts
for more than 60% of the total volume of e-mail in the United States.9 The amount
of spam coming through ISPs, however, can be even higher in spite of blocking
software and other solutions that stem some of the flow.10
This is well over 80
billion individual pieces of e-mail, and the quantity of spam keeps growing.11 As a
result, spam is much more than just an annoyance; it cost Internet Service Providers
and other American businesses $10 billion in 2003.12
This amounts to $14 per user
per month.13
As for the senders, spam is a good deal. Unlike junk mail (the U. S. Postal
Service counterpart to spam) UCEs cost very little to send.14 The fact that spam is
so inexpensive means that there is little incentive for unscrupulous marketers to
ensure that the lists they are using are verified or to limit in any way the
8
http://www.nytimes.com/2003/04/22/technology/22SPAM.html.
9
Brightmail, Feb. 2004. See www.brightmail.com.
10
AOL estimates that over 70% of the mail its customers receive is spam. Id.
11
Brightmail, “The State of Spam Impact and Solutions.” Jan. 2003.
12
http://www1.internetwire.com/iwire/release_html_b1?release_id=49906.
13
http://www1.internetwire.com/iwire/release_html_b1?release_id=49906. Ferris research
arrived at this figure by assuming that spam accounts for 20 percent of all in-bound
corporate email and 30 percent of all ISP in-bound email; however, Brightmail estimates this
percentage to be much higher – closer to 40 percent of corporate and up to 60 percent of
all ISP in-bound mail – with resulting higher costs to businesses and ISPs.
14
The microscopic cost of sending e-mail, compared with the price of postal mailings, allows
senders to make money on products bought by as little as one recipient for every 100,000
e-mail messages. Internet marketing companies typically charge $500 to $2,000 to send a
solicitation to a million in-boxes, but the cost goes up if the list is from a reputable source or
is focused on people in certain favored demographic groups. Sending the same offer to a
million people by mail costs at least $40,000 for a list, $190,000 for bulk-rate postage and
more for paper and printing.
3
transmission of UCE.15
There is every incentive for even scrupulous marketers to
milk their mailing lists through repeated mailings to the same e-mail addresses and
by selling or renting the list to “affiliates” or other marketing companies. Some
marketers go so far as to use spam to advertise spam blockers or advertise spam
blockers on their unsubscribe pages.
The courts have also recognized the cost of spam to both businesses and
ISPs. In addressing the cost to business, a Pennsylvania court stated
Unwanted e-mail creates other burdens. Mass advertising by e-mail is
virtually free. Thus, recipients may be receiving on a daily basis large
numbers of unwanted e-mail. This means that recipients may be
required to spend substantial time sorting, reading, and deleting
unwanted e-mail. In many instances, an e-mail cannot be deleted
without examining the text of the message because the sender uses a
vague or misleading subject line. Unwanted e-mail may preclude a
business from promptly responding to desired e-mail because of the
time spent deleting unwanted e-mail. Internet service providers incur
substantial expenses (that are eventually passed on to their
customers) caused by the volume of unsolicited e-mail, including the
need for additional bandwidth, additional storage, and additional
staff.16
The Washington Supreme Court recently addressed the attendant harm to ISPs:
To handle the increased e-mail traffic attributable to deceptive spam,
ISPs must invest in more computer equipment. Operational costs
likewise increase as ISPs hire more customer service representatives
to field spam complaints and more system administrators to detect
accounts being used to send spam.17
15
An e-mail list is verified when each recipient on the list has expressly indicated that he or
she wants to receive the marketing message and has confirmed this preference in
subsequent dealings with the marketer.
16
Aronson v. Bright-Teeth Now, L.L.C., 2002 WL 1466477, 57 Pa. D. & C.4th 1, 2 (Pa. Com.
Pl. 2002).
17
State v. Heckel, 143 Wash.2d 824, 834, 24 P.3d 404, 410 (2001), citing CompuServe Inc.
v. Cyber Promotions, Inc., 962 F.Supp. 1015, 1022 (S.D.Ohio1997). See also Am. Online,
Inc. v. IMS, 24 F.Supp.2d 548, 550 (E.D.Va.1998) (finding that a bulk e-mailer
injured AOL’s business goodwill and diminished the value of its possessory interest in its
computer network.)
4
Another significant issue is the sheer volume of spam.18 In April of 2001,
Aristotle installed a commercial spam filtering system in an attempt to staunch the
flood of spam into its customers’ inboxes. In February of 2002, the filter trapped
1,340,885 pieces of spam, approximately 35% of Aristotle’s total mail volume. By
January of 2003, this number had jumped to 6,092,414 pieces of spam – close to
60% of Aristotle’s total mail volume. Currently, 80% or more of the servers
attempting to send mail to Aristotle customers have mail streams that are 100%
spam. Even those that are not 100% spam contain a significant percentage of spam,
and streams that have no spam whatsoever comprise less than 5%. Spam continues
to increase at a rate of 5-10% a month.19
The Cold Chill of Spam
Spam clearly creates substantial costs to businesses, ISPs, and to the
Internet itself, but perhaps the greatest cost of spam is its chill on the free speech
rights of legitimate Internet users. The overwhelming volume of spam causes users
18
To understand the impact of the increasing volume of spam, it is useful to understand the
process. The United States District Court, E.D. Virginia recently explained the process as
follows:
To send or receive e-mail to or from other Internet users, one must obtain
Internet access through an ISP. See generally, Anne E. Hawley, Comment,
Taking Spam Out of Your Cyberspace Diet: Common Law Applied to Bulk
Unsolicited Advertising Via Electronic Mail, 66 UMKC L.REV. 381, 683
(1997)(discussion of e-mail basics).
An ISP operates a computer
communication service through a proprietary network. In addition to allowing
access to the content available within its own network, an ISP provides its
subscribers with a doorway to the Internet. Subscribers use the ISP's domain
name, e.g., "verizon.net," together with their own personal identifier to form a
distinctive e-mail mailing address, e.g., "[email protected]."
The
subscriber's e-mail address is used to send and receive e-mail from other
Internet users throughout the world. An e-mail address does not contain any
geographic designation, nor does it correspond to any geographic location. The
ISP subscriber can retrieve her e-mail using any computer connected to the
Internet from anywhere in the world.
However, e-mail transmitted to an ISP subscriber is processed and stored on
the ISP's e-mail computer servers. The e-mail server is located in a discrete
geographic location.
An e-mail server processes every e-mail that is
addressed to the ISP's customer. In other words, once the e-mail is
transmitted, it must first pass through the ISP's computer server to reach its
ultimate destination--the subscriber's computer.
Verizon Online Services, Inc. v. Ralsky, 203 F.Supp.2d 601, 605-06 (E.D.Va. 2002).
19
ModusGate.
5
to view with suspicion all commercial email, legitimate or not. The Center for
Democracy and Technology’s recent report to the Federal Trade Commission
explained:
The most dangerous, if least easily quantified cost, is the damage that
unsolicited commercial email can cause to the reputation of email. The
crashes, delays, lost messages and other problems causally related to
unsolicited commercial email may well undermine the public's
willingness to embrace this communication device for a range of
functions that require a high degree of predictability an d reliability. In
addition, UCE can have a chilling effect on individuals’ speech in that
individuals may be reluctant to participate in online forums and Usenet
groups, or may remove their email addresses from home pages for
fear of getting their email addresses placed on mailing lists for UCE.20
Aristotle’s research bears out this warning. In March of 2003, Aristotle posted an email address, [email protected], and asked its then-26,000-member customer
base to send in their experiences with spam.
During the subsequent 10 days,
Aristotle received over 700 responses, all of which addressed the negative impact of
spam. What became immediately clear from these responses is that the sheer
volume of spam has had a significant chilling effect on consumer’s use of the
Internet.
I've seriously considered going off-line permanently because of spam.
I get virtually NO meaningful e-mails (e-mail directed at me by
someone that knows me, that is). It almost wouldn't matter anyway,
because I commonly delete my e-mail without even looking at it.
Another by-product of junk e-mail.
-- P. M.
I have a very important work project that I e-mailed to myself to work
on, I had to delete 1900 spam mails before I could get my project to
start on. It takes hours. I do not read them just Delete. Also I am very
thankful that Aristotle does delete some in there [sic] software.
-- T. H.
I receive between 20 and 46 SPAM messages per day. I love the convenience
of ordering online, but most merchants insist on having my email address.
Does selling my address to other vendors net them more money than my
purchases? At this rate, online shopping may become too much trouble.
-- B. N.
20
http://www.cdt.org/spam/
6
Increasingly, Internet users are reluctant to shop online or to provide their e-mail
addresses for any reason for fear that doing so will result in more spam.
Because spam by its nature is commercial speech, reasonable restrictions can
be placed on its proliferation without violating the free speech guarantees of the First
Amendment. Cases to date have been brought on private trespass theories and
therefore have not implicated the First Amendment.21
The First Amendment debate can be informed by the Federal courts’ analysis
of the prohibitions against junk faxes. Those against limitations on junk faxes
argued that the First Amendment was implicated by those prohibitions; however,
legislation restricting those faxes has been found constitutional.22 Spam is the email equivalent of the junk fax. To be constitutional, spam legislation needed only to
put permissible content-neutral and generally-applicable restrictions on commercial
speech.23 The Supreme Court has recognized that such restrictions are
constitutionally-acceptable time, place, and manner regulations that do not violate
the First Amendment.24 Therefore, the spam legislation being considered by
Congress and subsequent regulations needed only to be “narrowly tailored to serve a
significant governmental interest, and . . . leave open ample alternative channels for
communication of the information.”25 Requiring that e-mail solicitations provide
reasonable opt-out provisions and that the solicitations not be fraudulent (do not
attempt to disguise the sender or the content) are reasonable restrictions that would
be narrowly tailored, content neutral, and leave open ample avenues for legitimate
commercial email.
21
22
23
Id.; Green v. America Online (AOL), ___ F.3d ___, 2003 WL 135811 (3rd Cir. 2003).
Telephone Consumer Protection Act of 1991 ("TCPA").
Watchtower Bible &Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150
(2002).
24
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).
25
Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).
7
The Can-Spam Act
In late 2003, Congress passed the Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003 (“Can-Spam”). Congress had considered
potential anti-spam legislation some two-years previous, but the proposed legislation
never came to a vote.
One reason for this was the heavy lobbying on the part of
the Direct Marketing Association (“DMA”), which felt that e-mail marketing should be
self-regulated, and among some larger ISPs concerned about their ability to continue
to send marketing message to their own customer bases. In 2003, however, the
picture changed. A number of states, most notably Washington, had taken the lead
and passed aggressive anti-spam legislation. Other states quickly followed suit, and
suddenly marketers were facing a multiplicity of state legislation.26 The risk posed
by having to comply with numerous and sometimes conflicting state standards
caused the DMA to revise its opposition to national spam legislation and to lobby
instead for a watered-down version that would pre-empt existing and potential state
laws and that the DMA could live with.
The front runner for national legislation remained the Burns-Wyden CanSpam bill (S.877), which had been around in various forms for over three years.
However, there were a number of other competing anti-spam proposals floating
around in Congress, ranging from a National Do-Not-E-mail Registry (modeled on the
Do-Not-Call Registry) to a “bounty” to be given to civilians who turned in spammers.
A number of the proposed statutes contained a private right of action, and some did
not preempt state law.
While the debate continued in Congress, the California
legislature passed a statute that placed an outright ban on all spam in California.
The California spam ban was to take effect in January of 2004; therefore, it became
imperative that national legislation be passed before the California law’s effective
26
Arkansas also passed anti-spam legislation, which was pre-empted by Can-Spam prior to
becoming effective.
8
date. To meet this deadline, Congress cobbled together the revised Can-Spam Act in
the last quarter of 2003 and gave the Act an effective date of January 1, 2004.
The final version of the Act retained many aspects of the Burns-Wyden
proposal but avoided anything that would have taken time to negotiate and resolve,
such as the requirement of a Do-Not-E-mail Registry or a bounty for turning in
spammers. Congress appointed the Federal Trade Commission (“FTC”) the agency
for enforcement of most aspects of the Act.
Although the FTC has yet to issue its
final Rulemaking, the Act is currently in force, and anyone using e-mail to
communicate with clients or potential clients should be aware of the Act’s
requirements. Although the Act was primarily targeted at spammers, anyone who
sends out an e-mail newsletter or any other form of e-mail solicitation must be
aware of the Act’s mandates. This includes attorneys, law firms, and legal
organizations, such as the American Bar Association.27
Defining what E-mail is Commercial – The “Primary Purpose”
Can-Spam regulates commercial electronic mail messages, which it defines as
“any electronic mail message the primary purpose of which is the commercial
advertisement or promotion of a commercial product or service (including content on
an Internet website operated for a commercial purpose).”28 The key language in this
definition is “primary purpose.” If the primary purpose of the e-mail is not
commercial, then it would ostensibly be outside the purview of the Can-Spam Act.
For the lawyers and firms that send out legal bulletins and the like to clients and
potential clients via e-mail, the determination of whether these e-mails have
27
There is a question as to whether FTC has enforcement powers against non-profit
organizations like the ABA. Until this issue is resolved, however, even non-profit legal
organizations should comply with Can-Spam, and this is, in fact, the position taken by the
American Bar Association.
28
Can-Spam, § 3(2)(A). Can-Spam also regulates pornography as well as fraudulent behavior
via e-mail (such as the Nigerian scheme); however, these issues are not relevant to the
average practicing attorney and are not addressed by this paper.
9
“advertising or promotion of a commercial product or service” as their primary
purpose is critical.
Few would argue that legal bulletins and e-newsletters have no commercial
purpose; after all, if there was no business development to be gained from sending
out legal bulletins by e-mail, few lawyers would bother to do so. In fact, legal
bulletins and the like serve to provide information about the lawyer or firm, to
promote the lawyer or firm’s expertise/knowledge/utility in a particular area of law,
and to remind clients and potential clients that the lawyer or firm is there to serve
legal needs should any arise. However, these e-newsletters also serve another
purpose – to inform and educate on current developments in the law. Which of
these competing purposes is “primary” makes all the difference as to whether the
legal bulletin is considered “commercial” and therefore subject to Can-Spam.
Tasked with defining the terms contained in Can-Spam, the FTC issued an
Advance Notice of Proposed Rulemaking (“ANPR”) which addressed a number of open
questions in the statute, including “defining the relevant criteria to facilitate the
determination of the primary purpose of an electronic mail message.”29 In the ANPR,
the FTC requested input on a number of different criteria to determine an e-mail
message’s “primary purpose.” The FTC suggested seven different possible criteria:
29
1.
“Primary purpose” means that an e-mail’s “commercial advertisement
or promotion is more important than all of the e-mail’s other purposes
combined.”
2.
“Primary purpose” means that the “commercial advertisement or
promotion is more important than any other single purpose of the
email, but not necessarily more important that all other purposes
combined.”
3.
“Primary purpose” should be determined by reference to the “net
impression” test applied by the FTC in other marketing contexts. If so,
then the e-mail must be “judged by the net impression that the
material as a whole makes on the reasonable observer.”
4.
“Primary purpose” means that the “commercial advertisement or
promotion in an email is more than incidental to the email.”
Can-Spam, § 3(2)(C).
10
5.
“Primary purpose” should be analyzed “on whether the commercial
aspect of the email financially supports other aspects of the email,”
such as when the e-mail is supported by banner ads.
6.
“Primary purpose” should be affected by the identity of the sender.
“for example, if a professional sports league sends email promoting its
involvement with a charitable organization, should that email be
considered to have a commercial ‘primary purpose’ under the Act
based on the league’s ‘for-profit’ status?”
7.
“Primary purpose” should be determined by a set of criteria different
from those above.
The comment period for the ANPR ended on April 12, and the FTC is expected to
issue final rulemaking the next couple of months.30 In the meantime, there is a
great deal of uncertainty as to whether “informative” e-newsletters such as legal
bulletins are commercial and must therefore comply with Can-Spam. Certainly,
some of the above definitions, particularly the fourth definition, would seem to
encompass legal bulletins sent by law firms or counsel.
Requirements for E-Mail Solicitations
Can-Spam § 5 requires that any e-mail whose “primary purpose” is
advertisement or solicitation to comply with certain rules, summarized below:
1. Header information, the “from” line, and the subject line cannot be false
or misleading.
2. Every e-mail solicitation must clearly and conspicuously include a
functioning return e-mail address or other Internet-based mechanism
(such as a link to a web page), that allows a recipient to opt-out of
receiving future mailings and that is capable of receiving such messages
for 30 days after the mailing is sent.
3. It is permissible to provide recipients a choice of what types of mail
he/she does or does not want to receive. 31
30
The ANPR also requested comment on the creation of a “Do-Not-E-mail Registry.” The
comment period for this aspect of the ANPR ended March 31.
31
For example, here is an opt-out from the Direct Marketing Association newsletter:
The DMA sends various types of e-mail communications.
To unsubscribe from future Membership e-mail, send us a blank e-mail
message by clicking here.
To unsubscribe from all DMA e-mail communications, including industry
breaking news, send us a blank e-mail message by clicking here.
11
4. Anyone who requests to be removed from the e-mail list must be removed
within 10 business days of the request. If the person subsequently signs
up again, then they can be included in future mailings.
5. All commercial e-mail messages must contain the following:
a. Clear and conspicuous identification that the message is an
advertisement or solicitation.32 You do not have to include this
notice if the recipient has given prior affirmative consent to receipt
of the message.33
b. Clear and conspicuous notice of the opportunity to decline to
receive further commercial e-mail messages (clear and
conspicuous opt-out); and
c. Valid physical postal address of the sender.34
The statute does not require that a statement of how the sender obtained the
recipient’s e-mail address be included, but many ISPs, including AOL and Aristotle,
require that this information be included in newsletters before they are distributed to
the ISP’s customers.
Additionally, Can-Spam provides that the FTC must issue a report by June of
2005 that “sets forth a plan for requiring commercial electronic mail to be identifiable
from its subject line, by means of compliance with Internet Engineering Task Force
Standards, the use of the characters ‘ADV' in the subject line, or other comparable
identifier, or an explanation of any concerns the Commission has that cause the
Commission to recommend against the plan.”35 In its ANPR, the FTC requested
32
This language should not be construed to require the precise words, “advertisement” or
“solicitation,” see Can-Spam §13(b). Nonetheless, if an e-mail is determined to be an
advertisement or solicitation, this must be clear from the subject line even if those precise
words are not used.
33
Example 1: Client conducts a contest in which it garners a number of e-mail addresses.
The first mailing to each of these new e-mail addresses should contain the clear and
conspicuous identification of the mail as an advertisement or solicitation.
Example 2: Recipient goes to client website and signs up for Client’s e-newsletter. You do
not have to state that the subsequent e-mail is an advertisement or solicitation.
34
It is an open question as to whether the “physical postal” address would include a P.O.
Box or mail drop. The language “physical address” would preclude such addresses,
whereas the language “postal address” would include them. It is unclear, then, where
“physical postal” address fits in this spectrum. This is one of the issues raised by the
FTC’s ANPR.
35
Can-Spam, §11(2).
12
comment on the utility and effectiveness of labeling such as “ADV,” the obstacles to
enforcing labeling requirements, and whether such labeling should be required for all
commercial e-mail.
Ethical Implications36
If an e-mail contains direct promotion of the attorney’s services, the same
rules would apply as to a letter sent to potential clients, and the e-mail should
comply with Rules 7.1 and 7.2 of the Rules of Professional Conduct. Additionally,
if the email is sent to potential clients the attorney knows needs the legal services
being offered by the attorney, then the text of the message must state that the email is advertising. But many e-newsletters and legal bulletins do not contain
direct promotion of the attorney’s services. It’s a much more difficult question
when the e-mail is an informational newsletter or legal bulletin (as opposed to a
newsletter lauding the benefits or successes of a particular attorney or firm). In
the case of informative e-newsletters, most lawyers and firms have taken the
position that these types of communications are not solicitations or
advertisements even if there is a tangential or direct marketing benefit from
sending them.
Enter Can-Spam. Depending on how the FTC defines the “primary purpose”
term, e-newsletters and legal bulletins could be categorized as “commercial” and
be required to comply with the statute. At a minimum, this would require that
these e-mails make clear that they are advertisements and/or solicitations
(though not necessary in these express words), and might ultimately include a
requirement that a label, such as ADV be placed on these e-mails. This result
might, in turn, cause a re-definition of e-newsletters and legal bulletins as
36
The ethics rules discussed below are the advertising rules adopted by the Supreme Court of
Arkansas. While similar in many ways to the model rules, there are some differences. Each
attorney should check his or her local Rules of Professional Responsibility to see if any
material differences exist.
13
advertisements or solicitations under the Rules of Professional Conduct.
This is
even more likely when the legal bulletin in question is sent to recipients who are
not current clients of the attorney or firm, since such missives could easily cross
the line into solicitation if the attorney is not careful. It would therefore be
incumbent upon attorneys to comply not only with the requirements of Can-Spam
but also with the rules of the Rules of Professional Responsibility and in particular
the rules governing advertising, Rules 7.1-7.5. To some extent, the ethics rules
and Can-Spam share certain requirements; however, they are not co-equal, and
an attorney should fully understand the requirements of both before sending out
unsolicited e-mail.
A.
Rule 7.1
Can-Spam does not regulate the accuracy of content of an e-mail except to
the extent that it prohibits and criminalizes fraudulent statements. But there is a
great gray area that is regulated by Rule 7.1 that falls somewhere between the
obviously fraudulent and the 100% truthful. Rule 7.1 of the Rules of Professional
Responsibility requires that an attorney not make false or misleading statements
about the services he or she offers. A statement is false and misleading if it
“contains a material misrepresentation of fact or law, or omits a fact necessary to
make the statement considered as a whole not materially misleading.”
The Rule
further provides that the communication cannot contain statements that are likely
to create an unjustified expectation of the possible results and cannot include
testimonials or endorsements.37
Can-Spam does, however, layer on another set of requirements with respect
not to the content of but to the structure of the e-mail itself. First, Can-Spam
prohibits false and misleading transmission information. This means that the
37
Rule 7.1. Communications Concerning A Lawyer’s Services.
14
header information cannot be materially false or materially misleading.38
Technically accurate information as to the originator of an e-mail that is
nonetheless “obtained by means of false or fraudulent pretenses or
representations shall be considered materially misleading,” as is header
information obscured because the mailer used “another protected computer to
relay or retransmit the message for purposes of disguising its origin.”39 In
practical terms, this means that the attorney is responsible for ensuring that
whoever the attorney is using to send out the e-newsletter, whether it is the
firm’s own mail servers or a third party, provides accurate technical information.
This is especially critical when using a third-party mailer, since newsletter services
will often provide legitimate e-mail services to one set of clients while at the same
time engaging in marginal spamming behavior on their own behalf of others. If
these third parties route the mail they send in such a way as to obscure the true
origin of the mail, then the attorney may be held liable for this under Can-Spam.40
Second, Can-Spam requires that the “from” line accurately identify the person
initiating the message.41 Third, the Act requires the subject line to be accurate in
that it must not “mislead a recipient, acting reasonably under the circumstances,
about a material fact regarding the contents or subject matter of the message. . .
.”
42
B.
Rule 7.2
Can-Spam, § 5(a)(1). “Header information” is defined as “the source, destination,
and routing information attached to an electronic mail message, including the
originating domain name and originating electronic mail address, and any other
information that appears in the line identifying or purporting to identify, a person
initiating the message.” Id. § 3(8).
38
39
Id. § 5(a)(1)(A) and (C).
40
Occasionally, companies that offer e-newsletter mailing services to legitimate businesses
send so much spam from their servers that ISPs have blacklisted these servers. Since no
mail can get through from a blacklisted server, there is motivation for some of these
companies to try to disguise the source of the mail. Attorneys would be well-advised to look
closely at any third-party e-newsletter service.
41
Can-Spam § 5(a)(1)(B).
42
Id. § 5(a)(2).
15
Rule 7.2 allows advertising through a number of different media, but as this
rule was written prior to the Internet, it does not specifically address advertising via
the World Wide Web or e-mail. The term “written communication,” however, can
fairly be read to include e-mail, which has been recognized in other contexts as
equivalent to other forms of written documentation. The Rule would therefore
appear to permit advertising via e-mail and the Internet. The other requirements
of the Rule, however, provide complications. First, Rule 7.2 requires that a “copy
or recording of an advertisement or communication shall be kept for five years after
its last dissemination along with a record of when and where it was used.” This
means that an e-newsletter or legal bulletin sent by e-mail must be retained by the
attorney or firm for five full years. The attorney must keep track of when and to
whom the e-mail communication was sent.
Second, the e-mail must include the
name of at least on lawyer licensed to practice law and must “disclose the
geographic location of the office or offices of the attorney or the firm in which the
lawyer or lawyers who actually perform the services advertised principally practice
law.” This requirement is similar to the Can-Spam requirement that the e-mail
include the physical postal address of the sender; however, regardless of whether
the FTC determines that a P.O. Box would be sufficient for purposes of Can-Spam,
it in all likelihood is not sufficient for Rule 7.2.
C.
Rule 7.3
Rule 7.3 states that “a lawyer shall not solicit, by any form of direct contact,
in person or otherwise, professional employment from a prospective client with
whom the lawyer has no family or prior professional relationship when a significant
motive . . .is pecuniary gain.”43 There is an exception to this prohibition, in that a
lawyer may solicit a potential client in writing, by regular mail, provided that the
43
Rule 7.3(a)
16
lawyer includes the word “ADVERTISEMENT” in red on the face of the envelope,
ensures that the letter does not resemble official pleadings, includes certain
mandatory statements, and complies with all the other rules governing lawyer
advertising.44
Applying this rule to e-mail, no direct solicitation through e-mail is
permitted. Although e-mail is generally considered equivalent to a “writing,” it can
not be sent by regular mail; therefore, Rule 7.3 precludes solicitation where a
“significant motive” for the e-mail is pecuniary gain. Can-Spam classifies an e-mail
as advertisement or solicitation when it’s “primary purpose” is advertisement or
promotion.45 As stated above at pages 10-11, the FTC is considering regulations
that, at worst, would include e-mails in which the commercial message was “more
than incidental” to the e-mail message or, at best, in which the “commercial
advertisement or promotion is more important than all of the e-mail’s other
purposes combined.”
In any event, and regardless of how “primary purpose” is
defined, it is unlikely that the definition will be completely consistent with Rule 7.3’s
standard of “significant motive.” Obviously, advertisement or promotion can be a
significant motive even when it is not “more important than all of the e-mail’s other
purposes combined.” By the same token, an e-mail in which the advertisement or
promotion is “more than incidental” would not necessarily have pecuniary gain as
its “significant motive.”
Any lawyer considering using e-newsletters as a communication tool would
be well-advised not only to consider how the FTC ultimately defines “primary
purpose” but also to pay close attention to how the “significant motive” standard is
applied.
For example, a generally informative legal bulletin-type e-newsletter
would likely not be considered to have pecuniary gain as a significant motive. It is
44
45
Rule 7.3(b)(1)-(7)
Can-Spam §3(2)(A).
17
a much closer call, however, if that e-newsletter addresses the law applying to a
particular set of circumstances (such as the law applying to toxic torts) and is
directed to specific individuals known to be in need of those services (those injured
in a large chemical accident).
If pecuniary gain is a significant motive for the
message, then Rule 7.3 states that e-mail cannot be the vehicle used to convey it.
D.
Rule 7.4
Rule 7.4 allows an attorney to communicate that he or she practices or does
not practice a particular type of law. However, with a few circumscribed
exceptions, the Rule prohibits an attorney from implying that he or she is a
“specialist” in any given area.46 Of course, this limitation applies to e-mail
communication as well. If a particular statement would not be acceptable in a firm
brochure, letter, or print advertisement, it is not acceptable in an e-mail newsletter.
E.
Rule 7.5
Rule 7.5 requires that attorneys use a firm name or other professional
designation that complies with Rule 7.1. Rule 7.5 allows attorneys to use trade
names so long as the trade name does not imply connection to a government
agency or charitable organization and does not violate Rule 7.1.47
In the context
of e-mail communication, this rule addresses what is permissible to put in the
“from” line. The requirements of 7.5 dictate that the name chosen to go in the
“from” line, if it is a trade name rather than the name of the attorney or firm, must
not be false or misleading (as prohibited by Rule 7.1). For example, a personal
injury attorney who handles a lot of airline crash cases may want to put the trade
46
An attorney is allow to say that he or she is a “Patent Attorney,” and, if engaged in
the practice of admiralty law, may use the designation “Admiralty,” “Proctor in
Admiralty” or similar designation. Rule 7.4(b) and (c). Currently certified Board
Recognized Specialists in Tax Law may continue to so state through December 31,
2005. Rule 7.4(e).
47
Many states do not allow the use of trade names at all, but they are permissible in
Arkansas.
18
name “Airline Crash Lawyers” in the “from” line, and this would be permissible.
Obviously, however, a tax attorney should not use this trade name, since it would
be completely unrelated to the type of law the tax attorney practices.
Can-Spam similarly requires that the “from” line must accurately identify the
person who initiated the message and must not be materially false or materially
misleading. Using the Airline Crash Attorneys as an example, so long as the
attorneys initiating the message are in fact attorneys that handle airline crash
cases, this designation in the “from” line probably will pass muster with Can-Spam
as well. In short, it is probable that any trade name that complies with Rule 7.5’s
requirements will also fulfill the requirements of Can-Spam.
Penalties for Violating Can-Spam
Can-Spam does not provide for a right of action on the part of those who
are receiving the unsolicited mail. Can-Spam does, however, allow for enforcement
by the FTC, the States Attorneys General, and Internet service providers.48 In the
event of a violation, the penalties include fines that range from $25.00 to $250.00
per violation and/or jail time for up to five years, as well as forfeiture of software,
equipment, and technology used (or intended to be used) in furtherance of the
violation and forfeiture of property traceable as proceeds from the violation.49
The
penalties under Can-Spam vary based on the egregiousness of the violation and on
whether certain aggravating factors exist.
Conclusion
The problems created by spam will not be going away anytime soon. It is
cheap for direct marketers, easy to do, and hard to track. Can-Spam will do little
to change these facts. Can-Spam will necessarily change the behavior of legitimate
marketers with its requirements for unsolicited commercial e-mail. Although the
48
49
Can-Spam §§ 7.
Can-Spam § 4.
19
FTC has yet to issue its final rulemaking under Can-Spam, the law is currently in
effect. Attorneys sending out newsletters e-mail would be well advised to look
closely and comply with the Act’s requirements, in addition to the Rules of
Professional Responsibility. In the case of doubt, attorneys and law firms should
err on the side of caution.
20
Text of the Rules of Professional Responsibility
Governing Attorney Advertising
Rule 7.1 – Communications Concerning a Lawyer’s Services
A lawyer shall not make a false or misleading
communication about the lawyer or the lawyer’s
services. A communication is false or misleading if it
(a) contains a material misrepresentation of fact or law,
or omits a fact necessary to make the statement
considered as a whole not materially misleading.
(b) is likely to create an unjustified expectation about
the results the lawyer can achieve, or states or implies
that the lawyer can achieve results by means that
violate the rules of professional conduct or other law;
(c) compares the lawyer’s services with other lawyer’s
services, unless the comparison can e factually
substantiated; or
(d) contains a testimonial or endorsement.
Rule 7.2 – Advertising
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may
advertise services through public media, such as a telephone
directory, legal directory, newspaper or other periodical, outdoor
advertising, radio or television, or through written
communication.
(b) A copy or recording of an advertisement or communication shall
be kept for five years after its last dissemination along with a
record of when and where it was used.
(c) Any lawyer shall not give anything of value to a person for
recommending the lawyers services, except that a lawyer may
pay the reasonable cost of advertisements or communications
permitted by this rule and may pay the usual charges for notfor-profit lawyer referral service or other legal service
organization; and may pay for a law practice in accordance with
Rule 1.17.
(d) Any communication made pursuant to this Rule shall include the
name of at least one lawyer who is licensed in Arkansas and who
is responsible for its content, and shall disclose the geographic
location of the office or offices of the attorney or the firm in
which the lawyer or lawyers who actually perform the services
advertised principally practice law.
(e) Advertisements may include photographs, voices or images of
the lawyers who are members of the firm who will actually
perform the services. If advertisements utilize actors or other
individuals, those persons shall be clearly and conspicuously
21
identified by name and relationship to the advertising lawyer or
law firm and shall not mislead or create an unreasonable
expectation about the results the lawyer may be able to obtain.
Clients or former clients shall not be used in any manner
whatsoever in advertisements. Dramatization in any
advertisement is prohibited.
(1)
Rule 7.3 – Direct Contact with Prospective Clients
(a)
A lawyer shall not solicit, by any form of direct contact, inperson or otherwise, professional employment from a
prospective client with whom the lawyer has no family or prior
professional relationship when a significant motive for the
lawyer’s doing so is the lawyer’s pecuniary gain.
(b)
Notwithstanding the prohibitions described in Paragraph (a), a
lawyer may solicit professional employment from a prospective
client know to be in need of legal services in a particular matter
by written communication. Such written communication shall:
(1)
include on the bottom left hand corner of the face
of the envelope the word “advertisement in red
ink, with type twice as large as that used for the
name of the addressee;
(2)
only be sent by regular mail;
(3)
not have the appearance of legal pleadings or
other official documents;
(4)
plainly state in capital letters “ADVERTISEMENT”
on each page of the written communication;
(5)
begin with the statement that “If you have
already retained a lawyer, please disregard this
letter;
(6)
include the following statement in capital letters,
“ANY COMPLAINTS ABOUT THIS LETTER OR THE
REPRESENTATION OF ANY LAWYER MAY BE
DIRECTED TO THE SUPERME COURT COMMITTEE
ON PROFESSIONAL CONDUCT, C/O CLERK,
ARKANSAS SUPERE COURT, 625 MARSHALL
STREET, LITTLE ROCK, ARKANSAS 72201;
(7)
shall comply with all applicable rules governing
lawyer advertising.
(c)
In death claims, the written communication permitted by
paragraph (b) shall not be sent until 30 days after the accident.
(d)
Any written communication prompted by a specific occurrence
involving or affecting the intended recipient of the
communication or a family member shall disclose how the
lawyer obtained the information prompting the communication.
22
(e)
(f)
(4)
Even when otherwise permitted by this rule, a lawyer shall not
solicit professional employment from a prospective client by
written or recorded communication or by in-person or telephone
contact if:
(1)
the prospective client has made known to the
lawyer a desire not to be solicited by the lawyer;
(2)
the solicitation involves coercion, duress,
harassment, fraud, overreaching, intimidation, or
undue influence; or
(3)
the prospective client is known to the lawyer to
be represented in connection with the matter
concerning the solicitation by counsel, except
where the prospective client has initiated the
contact with the lawyer.
Notwithstanding the prohibitions in paragraph (a), a lawyer may
participate with a prepaid group legal service plan operated by
an organization not owned or directed by the lawyer which uses
in-person or telephone contact to solicit memberships or
subscriptions for the plan from persons who are not known to
need legal services in a particular matter covered by the plan.
Rule 7.4 – Communication of Fields of Practice and Specialization
(a)
A lawyer may communicate the fact that the lawyer does or
does not practice in particular fields of law.
(b)
A lawyer admitted to engage in patent practice before the
United States Patent and Trademark Office may use the
designation “Patent Attorney” or a substantially similar
designation.
(c)
A lawyer engage in admiralty practice may use the
designation “Admiralty,” “Proctor in Admiralty” or a
substantially similar designation.
(d)
A lawyer shall not state or imply that a lawyer is certified as a
specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an
organization that has been approved by an appropriate
state authority or that has been accredited by the
American Bar Association; and
(2) the name of the certifying organization is clearly
identified in the communication.
(e)
[Transitional Provision s(December 31, 2002 – December 31,
2005)]
23
(1) A lawyer who is currently certified as a Board
Recognized Specialist in Tax Law under the Arkansas
Plan of Specialization may communicate such fact
through December 31, 2005.
(2) The Arkansas Legal Specialization Transition Task
Force shall discharge any administrative supervisory,
or other duties previously discharged by the Board of
Legal Specialization or the Tax Specialty Committee
that may arise during the transition period. No new
specialists shall be recognized under the Arkansas Plan
of Specialization.
(5)
Rule 7.5 – Firm Names and Letterhead
(a)
A lawyer shall not use a firm name, letterhead or other
professional designation that violates Rule 7.1. A trade name
may be used by a lawyer in private practice if it does not
imply a connection with a government agency or with a public
or charitable legal services organization and is not otherwise
in violation of Rule 7.1.
(b)
A law firm with offices in more than one jurisdiction may use
the same name in each jurisdiction, but identification of the
lawyer in an office of the firm shall indicate the jurisdictional
limitations on those not licensed to practice in the jurisdiction
where the office is located.
(c)
The name of a lawyer holding a public office shall not be used
in the name of a law firm, or in communication son its behalf,
during any substantial period in which the lawyer is not
actively and regularly practicing with the firm.
(d)
Lawyers hall not state or imply that they practice in a
partnership, association or other organization unless that is
the fact.
24
Electronic Communication by Lawyers: Navigating the
Intersection of the Ethics Rules and the CAN-SPAM Act of 2003
William R. Denny*
Potter Anderson & Corroon LLP
June 2004
I.
Introduction
Lawyers who attempt to navigate both their state’s ethics rules and the CAN-SPAM Act1
will likely end up lost. Generally, the CAN-SPAM Act regulates the character and transmission
of unsolicited commercial electronic mail (“email”) popularly known as “spam.”2 The Act
specifically prevents the sending of false or misleading message information,3 requires that the
message be labeled an advertisement4 and that the recipient be given an “opt-out” option to avoid
further contact.5 Though the CAN-SPAM Act does not directly mention lawyers, lawyers often
use email to send what might be considered unsolicited commercial messages.
*
William R. Denny is a partner at Potter Anderson & Corroon LLP, Wilmington, Delaware,
practicing in the area of information technology law. He can be reached at
[email protected]. Gabriel R. MacConaill, law student at the Dickinson
School of Law, assisted in the preparation of this paper.
1
Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
(“CAN-SPAM”) §§ 1-16, 15 U.S.C.S. §§ 7701-7713 (Lexis 2003) (effective Jan. 1,
2004).
2
See CAN-SPAM Act § 2.
3
See CAN-SPAM Act § 5(a)(1). The use of deceptive subject headings is expressly
prohibited. Id. § 5(a)(2).
4
See id. § (5)(a)(5)(i).
5
See id. § (5)(a)(3). Not only must the sender include an electronic option to cancel
further contact, under § (5)(a)(3), the sender must provide a valid “physical postal
address”. Id. § (5)(a)(5)(iii). Some state ethics rules also require the inclusion of a valid
“physical address” for any legal services advertisement. See N.Y. State Bar Ass’n
Comm. on Prof’l Ethics, Op. 756 (2002). The absence of an address in a widely
disseminated advertisement could be misleading by suggesting physical proximity to the
recipient. See id.
In a now famous incident, Laurence Canter, an attorney, placed an electronic
advertisement on the Internet that reached more than 5,000 Internet groups, and many thousands
of email addresses.6 Mr. Canter’s April 1994 unsolicited electronic message offered to help
almost anyone get a green card.7 The Tennessee Supreme Court’s Board of Professional
Responsibility determined that Mr. Canter’s conduct violated numerous ethics rules, 8 and
suspended him for one year.9 Although the Canter case represents extreme misuse of email
communication, over the past decade, state bars have been faced with increasingly frequent
questions regarding the ethics of advertising online.10
Widespread attorney advertising is itself a relatively recent development. The Supreme
Court struck down absolute bans on lawyer advertising in 1977.11 In Bates v. State Bar of
6
See In re Canter, Docket No. 95-831-O-H, at ¶ 47 (Disciplinary District, Board of
Professional Responsibility, Supreme Court of Tennessee, Feb. 27, 1997). Estimates
vary, but one source reports that Canter’s ad generated more than 30,000 irate responses.
See J.T. Westermeier, Ethics and the Internet, 17 Geo. J. Legal Ethics 267, 291 (2004).
7
See In re Canter, at ¶ 47. The advertisement began “Green Card Lottery 1994 May Be
The Last One! THE DEADLINE HAS BEEN ANNOUNCED.” Id. (emphasis in
original).
8
See id. at ¶ 48 Because the postings appeared on computer screens unsolicited, because
each reader was required to read at least the introduction to the message, and because the
postings appeared on Bulletin Boards having no relevance to immigration law, it was
deemed to be an improper intrusion into the privacy of the recipients, in violation of DR
1-102(A)(1), (5) and (6) and DR 2-103. Because Internet users generally pay by the
minute for their access to the Internet, the unsolicited message was at the recipients’
expense, in violation of DR 1-102(A)(5) and (6), and DR 2-103(A). The message did not
include the words “This Is An Advertisement”, in violation of DR 2-101(N). The
attorney held himself out as a specialist, without the disclaimer required by DR 2-101(C).
Finally, the attorney did not deliver a copy of the posting to the Board of Professional
Responsibility within three days of the posting, as required by DR 2-101(F).
9
See id. at ¶ 56 Canter was disbarred in the same hearing for a non-Internet-related
matter. Id.
10
See, e.g., Ariz. Comm. on Rules of Prof’l Conduct, Op. 97-04 (1997) (noting several
recent ethics opinions from other jurisdictions regarding electronic communication).
11
See Bates v. State Bar Of Ariz., 433 U.S. 350, 382-83 (1977).
2
Arizona, the Court held that although the First Amendment prohibited blanket bans, states retain
the right to prohibit advertising containing false or misleading information.12 A year later the
Supreme Court revisited the issue, holding that states could completely ban in-person solicitation
because of the potentially coercive effects on laypersons.13
The ethics rules regulating attorney conduct when soliciting potential clients have at their
foundation the same concerns about the coercive effects of overreaching, fraud, and undue
influence.14 Electronic communication may represent a danger similar to that of direct mail, and
also may pose risks more similar to in-person communication. The state bars have taken varied
approaches to ethical regulation of Internet-based solicitations. This paper outlines the general
approaches of states to specific types of attorney conduct, along with references to possible
overlap and non-congruence with the CAN-SPAM Act.
II.
Specific Conduct by Attorneys
The modern practice of law involves frequent electronic communication between lawyers
and clients. Some states have expressly recognized and regulated this form of communication
through their ethics rules, while other states have interpreted preexisting rules by comparing
electronic communication to more traditional forms of communication. Following are examples
of the application of different state ethics rules to two general types of conduct: sending
newsletters and linking to websites in email.
A.
Electronic Newsletters, Advice, and Other Direct Communication
12
See Id. at 383-84.
13
See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 465-66 (1978). Justice Potter was
also concerned about the state’s ability to regulate unrecorded in-person communication
that represents a heightened risk of fraud. Id. at 467.
14
See Model Rules of Prof’l Conduct R. 7.3(a) (2003). Rule 7.3(a) prohibits all in-person
solicitation other than another lawyer, or a person with whom the lawyer has a close
relationship. See id.
3
This category includes unsolicited direct communications from attorneys to prospective
clients by electronic transmission, commonly email. Within this category there are two
subcategories based on the states’ different ethics rules. Some jurisdictions track the old Code of
Professional Responsibility or the pre-2000 Rules of Professional Conduct, and other
jurisdictions include Internet-specific provisions similar to the post-2000 Rules of Professional
Conduct.15
1.
Ethics rules that do not Expressly Regulate Electronic Communication
a.
Code of Professional Responsibility
The Code of Professional Responsibility does not expressly regulate electronic
communication. The Ohio Code of Professional Responsibility (the “Ohio Code”),16 for
example, do not mention electronic communication in their advertising section.17 Without direct
textual guidance, lawyers are faced with uncertainty as to their obligations when using the
Internet.
Attorneys in Ohio are discouraged from sending unsolicited emails advertising legal
services.18 The Ohio Supreme Court’s Board of Commissioners on Grievances and Disciple (the
“Ohio Board”) recently considered the question of whether it is proper for attorneys to advertise
15
After adoption of most of the recommendations of the ABA Ethics 2000 Commission
Rule 7.3 included express regulation of electronic communication. See id. R. 7.3(a)-(c).
In 2002 the ABA House of Delegates adopted more of the Ethics 2000 Commission
proposal, including an express prohibition on “real-time electronic” contact in Rule 7.3.
See Stephen Gillers & Roy D. Simon, Regulation of Lawyers: Statutes and Standards 373
(2004 edition).
16
Ohio Code of Professional Responsibility (2003). The Ohio Code is made up of nine
Canons with corresponding Ethical Considerations and Disciplinary Rules. Id.
17
See id. DR 2-101 to 2-105.
18
Ohio Sup. Ct. Bd. of Comm’rs, Op. 2004-1 (2004) (“attorneys are discouraged from, but
not barred from, advertising their legal services through unsolicited email.”).
4
legal services by sending unsolicited emails to potential clients.19 The Ohio Board initially
recognized the controversial nature of unsolicited commercial email, and the often deceptive
techniques used by many senders.20 Next, the Ohio Board noted that spamming had occurred in
the legal profession, and outlined some of the provisions of the CAN-SPAM Act.21 Although the
Ohio Code does not mention Internet communication, the Ohio Board took the position that its
advertising rules apply to “all forms of public communication including email.”22
The Ohio Code generally prohibits an attorney from providing false or misleading
statements in any public communication.23 The Ohio Board ruled that email is a form of direct
mail advertising since email travels to an electronic mail address and each address is unique.24
As a form of targeted direct mail advertising, email must satisfy the specific provisions of Ohio’s
DR 2-101(F)(2), 2-101(F)(4), and DR 2-101(H)(1).25 Disciplinary Rule 2-101(F)(2) requires,
among other things, that the mail be labeled “ADVERTISEMENT ONLY” both in the text and
19
Id.
20
See id. The Ohio Board noted specifically that spam messages often come with subject
intended to make the recipient think they know the sender. Id. (citing Kenneth E.
Johnson, ABA Law Practice Management Section, The Lawyer’s Quick Guide to Email
115 (1998)).
21
See Ohio Sup. Ct. Bd. of Comm’rs, Op. 2004-1 (2004).
22
See id. The Ohio Board was able to provide some guidelines from previous opinions:
(1) “A lawyer may communicate with established clients through e-mail[,]” (2) “A
lawyer may receive and respond to e-mail legal questions from visitors to the law firm’s
Web site[,]” (3) “A lawyer may communicate with other attorneys to express an interest
in serving as counsel in a matter[,]” (4) “E-mail solicitation of prospective clients known
to have a legal need is subject to regulation as direct mail solicitation[.]” Id.
(enumeration added).
23
Ohio Code DR 2-101.
24
See Ohio Sup. Ct. Bd. of Comm’rs, Op. 2004-1 (2004) (“[w]hen a person receives an email addressed to his or her electronic mail address, the person is a direct target of the
sender.”).
25
See id.
5
upon the envelope.26 Where the direct mail solicitation is sent to a defendant in a civil action,
DR 2-101(F)(4) requires the lawyer to first verify service upon that defendant.27 Finally, if the
communication is to a prospective client or their relative within thirty days of an accident that
might give rise to a claim of personal injury or wrongful death, DR 2-101(H)(1) requires the
inclusion of a pamphlet entitled “Understanding Your Rights.”28
Next the Ohio Board provided guidance on how lawyers should apply the direct mail
restrictions to email communication.29 The Board recognized that this task would not be easy.30
Placing the warning “ADVERTISEMENT ONLY” on the subject line of the email, as well as in
the text will satisfy DR 2-101(F)(2)(e).31 Simple labeling will not however, satisfy the
requirements of DR 2-101(F)(4) and 2-101(H)(1).
A lawyer or law firm using a database of email addresses to send newsletters or other
advertising email will have almost no way of knowing whether an email will go to a defendant in
a civil action who has not yet been served.32 Neither will a broad database offer the attorney an
opportunity to know whether an email will go to a prospective client or his or her relative within
a thirty day period following an accident or disaster that might give rise to a claim of personal
26
See Ohio Code DR 2-101(F)(2). The recital “ADVERTISEMENT ONLY” must be in
red ink and type no smaller than 10 point. Id. DR 2-101(F)(2)(e).
27
Id. DR 2-101(F)(4).
28
See id. DR 2-101(H)(1).
29
Ohio Sup. Ct. Bd. of Comm’rs, Op. 2004-1 (2004).
30
The application of direct mail requirements to email communication “will require effort
by attorneys.” Id.
31
See id. (citing Ohio Sup. Ct. Bd. of Comm’rs, Op. 2002-6 (2002)). If possible the
language should be written in red and in no smaller than 10 point font. Id. If not
possible, the Ohio Board will be satisfied with black type on the subject line and in the
text. Id.
32
See id. (discussing the requirements of DR 2-101(F)(4)).
6
injury or wrongful death.33 The Ohio Board nevertheless advised attorneys to use due diligence
to avoid sending email not in compliance with the Ohio ethics rules as well as any other rules
governing advertising.34 The Ohio Board did not detail how this form of due diligence could be
satisfied.
The Ohio Board advised that until specific ethics rules addressing unsolicited email
advertising of legal services are set forth in the Ohio Code, attorneys are discouraged, but not
barred, from advertising through unsolicited email.35 The requirements of the Ohio Code likely
cannot be satisfied with respect to email advertising, and the term due diligence is not defined,
thus creating risks for Ohio attorneys choosing to advertise by email. By contrast, the same Ohio
attorneys would likely be able to satisfy the general requirements of the CAN-SPAM Act.
The CAN-SPAM Act would require labeling similar to the Ohio Code to avoid the
transmission of false or misleading information.36 In addition CAN-SPAM requires an opt-out
33
See id. (discussing the requirements of DR 2-101(H)(1)).
34
See id. The Ohio Board expressly referred to “applicable federal and state laws.” Id.
This reference along with the specific discussion of CAN-SPAM earlier in the opinion
may be a general warning to lawyers that CAN-SPAM applies to their email as it would
to the email of any other business. Id.
35
See id. The Ohio Board also advised against attorney use of online advertising groups or
services that send unsolicited email until ethical rules were promulgated. See id. As with
direct attorney solicitation, the use of these groups must satisfy the Ohio Code, including
provisions on referrals. See id. Other jurisdictions have ruled, however, that newsgroup
postings are instead a form of improper solicitation similar to phone calls, and are strictly
prohibited. See Tenn. Sup. Ct. Bd. of Prof’l Responsibility Op. 95-A-570 (1995).
Section 6 of the CAN-SPAM Act makes it unlawful to allow a business to be promoted in
violation of the prohibition of transmission of false or misleading information in §
5(a)(1). See CAN-SPAM § 6. This provision makes attorneys responsible for
newsgroup or referral solicitation through email that violates CAN-SPAM. See id.
36
See CAN-SPAM § 5(a)(1). The inclusion of “ADVERTISEMENT ONLY” as a subject
is also likely to avoid running afoul of the prohibition on deceptive subject headings. See
id. § 5(a)(2).
7
feature, allowing the recipient to avoid future advertising.37 In contrast, the Ohio Code requires
that the attorney satisfy certain conditions prior to contacting certain individuals.38 If a potential
client opts out of future advertising communication, the attorney will be required to mark or
otherwise label that email address.
b. Rules of Professional Conduct
The difficulty of applying ethics rules that do not mention electronic communication is
not limited to Ohio and other Code jurisdictions. Jurisdictions that have adopted a form of the
Rules of Professional Conduct without the Ethics 2000 Commission changes to Rule 7.3 provide
the second example of ethical rules that do not expressly regulate electronic communication.
Arizona’s Rules of Professional Conduct (the “Arizona Rules”) do not include a reference to the
regulation of written electronic communication.39 In 1997, the State Bar of Arizona’s
Committee on the Rules of Professional Conduct (the “Arizona Committee”), provided answers
to certain questions about attorney activity on the Internet.40
One question posited whether it was a violation of Arizona Rule 7.3 to contact a
prospective client directly through email if the attorney knew that the client was in need of legal
representation for a particular matter.41 Arizona’s version of Rule 7.3 only requires labeling
disclosures if the client is known to need legal advice.42 The Arizona Committee responded by
37
See id. § 5(a)(3). The Ohio Board does advise that attorneys should provide a method for
a recipient to opt-out of receiving further email. See Ohio Sup. Ct. Bd. of Comm’rs, Op.
2004-1 (2004).
38
Compare CAN-SPAM § 5(a)(3) with Ohio Code DR 2-101(F)(4), (H)(1).
39
See Ariz. Rules of Prof’l Conduct, ER 7.3(a), (d) (2002).
40
See Ariz. Comm. on Rules of professional Conduct Op. 97-04 (1997).
41
See id.
42
See Ariz. Rules ER 7.3(b).
8
initially advising that neither email nor “chat room” communications should be considered
prohibited telephone or in-person solicitation.43 These types of communications are not
prohibited because there is not an aspect of immediacy and confrontation, a potential client
reading an email or participating in a chat room has the option of not responding to unwanted
solicitation.44
The Arizona Committee went on to advise, however, that email contact with a
prospective client known to need legal services might be a violation of Arizona Rule 7.3(b).45
That is, Arizona Rule 7.3(b) would be violated if the attorney initiated the contact,46 and the
client had a “known legal need for a particular matter,”47 unless the attorney complied with the
written communication requirements of the rule.48 When applicable, Arizona Rule 7.3(b)
requires that a writing be labeled on the envelope, and on the first page of text “ADVERTISING
MATERIAL: THIS IS A COMMERCIAL SOLICITATION.”49
Since there would be no envelope or specific first page of text in an email, the Arizona
Committee recognized that applying its advertising rules “pose[d] a slight dilemma for
43
See Ariz. Comm. on Rules of professional Conduct, Op. 97-04 (1997).
44
See id.
45
See id.
46
Lawyer responses to inquiries sent by prospective clients need not comply with Arizona
Rule 7.3(b). Id.
47
Id. Thus, solicitations sent to all the members of a particular topical list serve would not
be affected by Arizona Rule 7.3(b), because although the recipients might be interested in
a particular area of the law, they do not necessarily need representation in a particular
matter. See id.
48
See id.
49
See Ariz. Rules ER 7.3(b). This notification must be printed in red ink and be in “type
size at least double the largest type size used in the body of the communication.” Id.
9
electronically transmitted solicitations.”50 Attorneys in Arizona are advised to make a
reasonable effort to comply with the Arizona Rules if technologically feasible.51 The Arizona
Committee suggested, at a minimum, that the disclaimer be included in all capitals on the subject
line of the email, and in the body of the communication.52
Labeling requirements under CAN-SPAM, however, are broader than the Arizona
Rules.53 CAN-SPAM likely requires that all unsolicited commercial emails sent by attorneys be
labeled in such a manner to indicate they are advertisements.54 Similarly, the CAN-SPAM Act
requires the inclusion of an opt-out feature in every unsolicited commercial email.55 The
Arizona Rules include a prohibition against future written communication, but the prohibition
only applies “if it has been made known to the lawyer that the person does not want to receive
such communications from the lawyer.”56
The confusion over application of rules of ethics to email communication exists even in
jurisdictions that have amended portions of their Rules of Professional Conduct to include
50
Ariz. Comm. on Rules of professional Conduct, Op. 97-04 (1997).
51
See id.
52
See id.
53
Compare CAN-SPAM § 5(a)(2) with Ariz. Rules ER 7.3. Section 5(a)(2) of CAN-SPAM
prohibits the transmission of commercial email where the subject heading would likely
mislead the recipient about a material fact regarding the contents. CAN-SPAM § 5(a)(2).
The absence of a subject heading indicating that an attorney email was an advertisement
would seem to be materially misleading. See id.
54
See CAN-SPAM § 5(a)(1)-(2). Section 5 generally prohibits the transmission of false or
misleading information. See id. It is likely that an unsolicited commercial email from
an attorney, not labeled an advertisement, would be considered false or misleading. The
prohibition against deceptive subject headings may require the “advertising label” on the
subject line. See id. § 5(a)(2).
55
See id. § 5(a)(3)-(4).
56
Ariz. Rules ER 7.3(d)(1). The language of this rule suggests that the burden of informing
the lawyer of a desire to be removed from a mailing list lies with the recipient. See id.
10
reference to electronic communication. Utah’s current Rules of Professional Conduct (the “Utah
Rules”) contain a prohibition against real-time electronic communication within the rule against
in-person solicitation.57 The Utah Rule concerning written communication, however, is broadly
worded and does not contain a specific reference to electronic communication.58 In particular,
Utah Rule 7.3(c) requires that every written communication from a lawyer soliciting
employment that is sent to a prospective client include the words “Advertising Material” on the
outside of the envelope, and at the beginning of the communication.59
In 2002, the Utah State Bar’s Ethics Committee (the “Utah Committee”) was asked to
clarify the applicability of Utah Rule 7.3(c) to various law firm activities.60 The question
centered on the Internet related activities of sending emails, newsletters, brochures, advisories,
and alerts to existing and prospective clients.61 The Utah Committee responded that an email
sent directly to a prospective client was similar to a regular mailing and must therefore include
the legend “Advertising Material” at the beginning of the message.62 Further, newsletters,
advisories, alerts or brochures sent to clients that either extolled the firm’s expertise, encouraged
the client to engage the firm, or contact the firm for more information were considered
solicitation by the Utah Committee and require the proper warning.63 When, however, the
57
See Utah Rules of Prof’l Conduct, R. 7.3(a) (2003). The proscription against real-time
communication exists because, like in-person communication, such a situation is fraught
with the dangers of undue influence upon the layperson by the knowledgeable attorney.
See id. R. 7.3 cmt.
58
See id. R. 7.3(c).
59
See id.
60
See Utah State Bar Ethics Comm., Op. 02-02 (2002).
61
See id.
62
See id.
11
emails, newsletters, advisories, alerts or brochures are sent to a current or former client, the
advertising legend is unnecessary.64
The CAN-SPAM Act does not contain a similar exception for current clients or
consumers. Instead, the CAN-SPAM labeling and opt-out features apply to unsolicited
commercial emails sent to any recipient, regardless of whether there is an existing relationship.65
As a result, an attorney must determine how the CAN-SPAM Act might apply to client
communication.
2. Ethics Rules that Expressly Regulate Electronic Communication
Even where the states have expressly included electronic communication in their rules of
ethics, jurisdictional rules differ and application can be confusing. A few states, following the
lead of the ABA, have expressly mentioned electronic communications in their ethics codes.
ABA Model Rule 7.3(c) includes electronic communications in its definition of written
communications, requiring that emails soliciting employment from prospective clients contain
the words “Advertising Material” at the beginning and end of the message.66 Some states have
included similar language in their counterparts to ABA Model Rule 7.3.
Hawaii is an interesting exception.67 The Hawaii Rules of Professional Conduct (the
“Hawaii Rules”) forbid email solicitation of prospective clients in Rule 7.3(f).68 The comments
63
See id.
64
See Utah Rules R. 7.3(c). Utah, like the ABA Model Rules, exempts from the
advertisement warning requirement persons with whom the attorney has, or has had, a
professional relationship. See id.; see also Model Rules R. 7.3(c).
65
See CAN-SPAM §§ 3(13), 5(a). Utah, like Arizona, does provide that a prospective
client may avoid future communication if such desire is made known to the attorney. See
Utah Rules R. 7.3(b)(1).
66
See Model Rules R. 7.3(c).
67
See Haw. Sup. Ct. Disciplinary Bd., Op. 41 (2001) (discussing the application of
Hawaii’s ethics rules to Internet advertising).
12
to Hawaii Rule 7.3 do not mention subsection (f), but do reference the threat of undue influence
and overreaching that accompany certain solicitation of prospective clients.69 One can speculate
that the Hawaiian Rules prohibit email contact simply because of the informal nature of such
solicitation.
Most jurisdictions have not banned email contact, but do require warnings in unsolicited
electronic advertising much like the requirements in Model Rule 7.3. For example, Tennessee’s
current version of the Rules of Professional Conduct contains an express labeling requirement
for “computer transmissions.”70 A solicitation sent from a Tennessee lawyer must include the
words “THIS IS AN ADVERTISEMENT” in conspicuous print size at the beginning and the end
of the writing.71 Other jurisdictions not only expressly regulate electronic communication, but
include in that regulation an incorporation of all of the traditional direct written contact rules as
well.
Florida’s Rules of Professional Conduct (the “Florida Rules”) have a separate subchapter
devoted to computer-accessed communications.72 Within that subchapter, there is a subsection
entitled “Electronic Mail Communications” that incorporates by reference all of the Florida
Rules on traditional direct communication.73 The email subsection goes on to require that any
68
See Haw. Rules of Prof’l Conduct R. 7.3(f)(1) (2002). Hawaii Rule 7.3(f)(1) provides:
“written communications to prospective clients shall be sent only by regular U.S. mail,
not by registered mail or other forms of restricted delivery, and not by facsimile or email[.]” Id. (emphasis in original).
69
See id. R. 7.3 cmt. [1]-[6].
70
See Tenn. Rules of Prof’l Conduct, R. 7.3(c) (2004).
71
Id.
72
See Fla. Rules of Prof’l Conduct, R. 4-7.6 (2002). Computer-accessed communications
are defined as: “information regarding a lawyer’s or law firm’s services that is read,
viewed, or heard directly through the use of a computer.” Id.
13
such communication disclose at least one office location of the lawyer or lawyers and include the
statement “legal advertisement” in the subject line.74 According to the comments to Florida Rule
4-7.6, unsolicited electronic mail messages are “functionally comparable” to direct mail
communications.75
It is likely that attorneys will satisfy the labeling requirements of the CAN-SPAM Act by
following states ethics rules expressly regulating email solicitation. And yet, the numerous optout requirements of CAN-SPAM remain a hurdle independent of most existing state ethics rules,
even those that expressly regulate email. Including opt-out options and monitoring client lists to
prevent future solicitation of those who have opted-out will be a difficult task for lawyers and
law firms.
B.
Linking to the Firm’s Website in an Email
When an attorney sends an otherwise innocuous email, does the inclusion of a website
link transform the email into a commercial communication or a solicitation for pecuniary gain?
If so, the email’s author might be required to satisfy CAN-SPAM, the state ethics rules, or both.
CAN-SPAM by its terms applies to “commercial electronic mail messages.”76
1.
Application of CAN-SPAM to Website Links
Commercial electronic mail is defined in the CAN-SPAM Act as any message the
“primary purpose of which is the commercial advertisement or promotion of a commercial
product or service.”77 The CAN-SPAM definition of commercial email parenthetically includes
73
See id. R. 4-7.6(c)(1).
74
See id. R. 4-7.6(c)(2)-(3).
75
See id. R. 4-7.6 cmt. [3].
76
See, e.g., CAN-SPAM § 5(a).
14
content on a website operated for a commercial purpose.78 This reference suggests that the
inclusion of a commercial website link destroys the non-commercial nature of an email.
The CAN-SPAM Act, however, provides that the inclusion of a link to a commercial
website does not make an email commercial if the contents or circumstances of the message
indicate a primary purpose that is not commercial.79 This somewhat circular language suggests
that a website link alone does not represent a commercial primary purpose.
Interpretation of the CAN-SPAM Act will, however, require reference to its underlying
broad public policy. Email is relied upon by millions of Americans every day in their personal
and professional lives.80 Unsolicited commercial email accounts for over half of all email traffic,
according to an estimate relied on by Congress.81 Against this backdrop, Congress found a
substantial government interest in regulation of email, and it is against this backdrop that a court
will interpret the Act. It is possible that courts will find a primary commercial purpose solely on
the basis of a website link contained in an email, based on the Act’s broad public policy.
2.
Application of State Ethics Rules to Website Links
While the CAN-SPAM Act relies on the primary purpose test to label a message
commercial, the majority of state ethics rules apply only where a significant motive for an
77
Id. § 3(2)(A). By comparison the Supreme Court has defined commercial speech as
“expression related solely to the economic interests of the speaker and its audience.” See
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561 (1980).
78
CAN-SPAM § 3(2)(A).
79
See id. The primary purpose must be “other than commercial advertisement or
promotion of a commercial product or service.” Id.
80
See id. § 2(a)(1).
81
See id. § 2(a)(2). The exponential growth of unsolicited commercial email is shown by
reference to the same data in 2001 where commercial email represented only seven
percent of electronic mail traffic. See id.
15
attorney communication is the lawyer’s pecuniary gain.82 As such, solicitations of employment
almost always fall within the ambit of the rules. In order to determine if an email containing a
link is subject to state regulation, one must initially determine whether a significant motive for
the email is a lawyer’s pecuniary gain.
The Utah Committee has advised that any newsletter, alert or brochure that encourages
the recipient to contact the firm for more information is a solicitation of professional
employment and thus subject to the Utah Rules.83 A link in an email that is not otherwise a
solicitation could be viewed as an encouragement to contact the firm for more information. This
interpretation would result in broad application of state ethics rules if attorneys include a link to
their firm in emails as a matter of course. Even if the inclusion of a link to the firm website does
not make an email a solicitation subject to regulation, most state ethics rules regulate the domain
names directly.84
The Maryland State Bar Association Committee on Ethics has recognized that an Internet
domain name is a communication subject to the general requirement that attorney
communications not be false or misleading.85 Avoiding a false or misleading domain name does
82
See, e.g., Tenn. Rules R. 7.3(c). Some state rules simply require that a motive of the
communication is pecuniary gain. See Ariz. Rules ER 7.3(a). A few states mention
“significant motive” only in the prohibition against in-person contact, but the later use of
the undefined term “solicitation” in their rules suggests that the “significant motive”
requirement applies to the entire body of advertising rules. See, e.g., Utah Rules R. 7.3.
Finally states such as Delaware prohibit in-person communication where a significant
motive is the lawyer’s pecuniary gain, but regulate all written communication “soliciting
professional employment.” See Del. Lawyers’ Rules of Prof’l Conduct R. 7.3(a)-(b)
(2003). Since the solicitation of employment is likely to be significantly motivated by
the attorney’s pecuniary gain, the rule in Delaware applies in a similar fashion to rules
from states using the significant motive test directly. See id.
83
See Utah State Bar Ethics Comm., Op. 02-02 (2002).
84
See Bar Ass’n of the City of N.Y. Comm. on Prof’l Ethics, Op. 2003-01 (undated).
16
not necessarily require an attorney to use the firm’s name, but does require refraining from
including descriptive phrases in the name itself.86 State jurisdictions have cautioned lawyers
against using such domain names as “bestlawyer.com,” “bigverdict.com,” or
“personalinjuryexpert.com.”87
In response to a specific inquiry, the Arizona Committee advised a law firm against
adopting the domain names “countybar.com” or “arizonalawyer.org.”88 Use of “countybar.com”
is unacceptable as it erroneously suggests an affiliation between the law firm and the local bar
association.89 And “arizonalawyer.org” cannot be used because the “.org” designation is meant
to indicate a non-profit organization. The use of “.org” by a private law firm would be
misleading because it would suggest that the firm was not operating for profit.90
3. Preemption
The CAN-SPAM Act expressly supersedes any state rule that regulates the use of
electronic mail to send commercial messages, except to the extent that the state law prohibits
falsity or deception in the message or attachments.91 Since all of the state ethics rules discussed
in this memo are couched in terms of the prevention of false or misleading communications it
85
See Md. State Bar Ass’n. Comm. on Ethics Op. 02-18 (2002); see also Cal. State Bar
Standing Comm. on Prof’l Responsibility, Op. 2001-155 (2001).
86
See Md. State Bar Ass’n. Comm. on Ethics, Op. 02-18 (2002).
87
See, e.g., Bar Ass’n of the City of N.Y. Comm. on Prof’l Ethics, Op. 2003-01 (undated)
(names seeking to promote the lawyer’s skill or talent may be considered misleading).
88
See Ariz. Comm. on Rules of professional Conduct, Op. 2001-05 (2001).
89
See id. The Arizona Committee reminded all lawyers that the Rules of Professional
Conduct “do not require evidence of actual or even potential confusion; they require that
lawyers refrain from false, deceptive or misleading communications.” Id.
90
See id.
91
CAN-SPAM § 8(b)(1).
17
would seem that none are preempted.92 Instead, the state rules could be viewed as additions to
the requirements of CAN-SPAM where attorneys send unsolicited commercial email material.
One United States district court has discussed the preemptive effect of the CAN-SPAM
Act. In White Buffalo Ventures v. The University of Texas at Austin, the court held that the
CAN-SPAM Act did not preempt the University’s pre-existing email filter of certain unwanted
commercial solicitation.93 Although this holding is not based on the CAN-SPAM Act’s
allowance for the continued viability of state rules that prevent falsity or deception, it is evidence
that the various requirements of state ethics rules consistent with or in addition to CAN-SPAM
are still valid. Since both sets of regulations likely apply to electronic communication by
attorneys, a number of additional issues arise.
Some of the additional issues, not addressed in this memo, involving application of both
the CAN-SPAM Act and state ethics rules to attorney emails, are as follows: Is a violation of the
CAN-SPAM Act also a violation of state ethics rules?94 Can individuals enforce the CANSPAM act through state ethics rules?95 Which ethics rules apply to emails that cross borders?96
92
See, e.g., Model Rules R. 7.1 (“a lawyer shall not make a false or misleading
communication.”).
93
See White Buffalo Ventures v. The Univ. of Tex at Austin, No. A-03-CA-296-SS, slip
op. at 7 (W.D. Tex. Mar. 9, 2004).
94
Model Rule 8.4(c) states that it is professional misconduct to “engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.” See Model Rules R. 8.4(c).
Violating the prohibition in CAN-SPAM of avoiding false or misleading transmission
information may be conduct involving deceit or misrepresentation. See CAN-SPAM §
5(a)(1)-(2). It is not clear however, that the failure to provide the proper opt-out
information, or the failure to avoid contacting a person who has opted out is conduct
necessarily involving dishonestly, fraud, deceit or misrepresentation. See id. § 5(a)(3)(5).
95
CAN-SPAM is by its terms enforceable only by the Federal Trade Commission, or the
state attorney generals. See CAN-SPAM § 7(a), (f). But if a violation of CAN-SPAM is
concurrently a violation of the state’s ethics rules, then it is possible that an individual
18
Although a complete analysis of these issues is not within the scope of this discussion, their
existence adds to an understanding of the difficult and confusing position attorneys are in with
respect to their electronic communications.
IV. Conclusion
Attorneys across the country need to become informed about the provisions of the CANSPAM Act, and how the new regulations interact with their jurisdiction’s rules of ethics.
Although the CAN-SPAM Act does not mention attorneys specifically, its provisions apply to
conduct engaged in by most lawyers every day.
Many current state ethics rules governing Internet communication are out of date, are
confusing, or both. Amendment of these rules to include express reference to the Internet, and
regulation consistent with CAN-SPAM, would help to provide attorneys with a recognizable rule
regarding their conduct. This may prevent lawyers from violating a new federal law, annoying
prospective clients, and embarrassing the profession.
636277v2
could bring an ethics complaint that would relate to violation of the CAN-SPAM
provisions. See Model Rules R. 8.4.
96
Model Rule 8.5(a) provides that a lawyer is subject to the disciplinary authority of the
jurisdiction in which he or she practices, along with the authority of a jurisdiction in
which the lawyer provides or offers to provide legal services. See Model Rules R. 8.5(a).
The Choice of law provision in Model Rule 8.5(b) allows the application of the rules of a
jurisdiction in which the predominant effect of the conduct occurs. See id. § 8.5(b). The
fluid and omnipresent nature of the Internet makes a clear interpretation of the
“predominant effect” test difficult at best.
19
The Can-Spam Act:
Potential Ethics Pitfalls
Presented By
Elizabeth Bowles, President, Aristotle.Net Inc.
Michael Fleming, Special Counsel, Faegre &
Benson LLP
William Denny, Partner Potter Anderson &
Corroon LLP
Henry Judy, Of Counsel, Kirkpatrick & Lockhart LLP
Dan Appelman, Partner, Heller Ehrman White &
McAuliffe LLP
Outline
” The History of Spam &
Scary Spam Stats
” The Act’s Provisions
” The Rules of Professional
Responsibility
” Best Practices
The History of Spam
What is E-mail?
E-mail is data converted by the
computer into digital bits of
information for transmission over a
wire or the airwaves.
If using a land-line connection, all email goes over the phone wires.
If sending e-mail from a cellular
phone or PDA, e-mail is transmitted
over the airwaves.
Why Do We Like It?
E-Mail
W Convenient
W Simple
W Immediate
W Expected
WHAT IS SPAM?
Spam =
Unsolicited Commercial E-mail
The Roots of Spam:
Blame
the Lawyers
The Roots of Spam
In 1994, two Phoenix lawyers
hired a programmer to write
code to send a message to tens
of thousands of newsgroup users.
This was the first SPAM.
How did it get its name?
Newsgroup members dubbed
these messages “Spam” in
honor of the well-known
Monty Python bit.
The name stuck.
Scary Spam Stats
Scary Spam Stats
Over 60% of all
mail received into
U.S. inboxes is
Spam!
(Source:
(Source: BrightMail)
BrightMail)
Scary Spam Stats
• The majority of spammers are
located in the U.S.
• 90% of all spam is directed to
computers inside the U.S.
• As of this year for the first time, over
60% of all spam is coming from
outside the U.S.
Scary Spam Stats
Increasingly, US
spammers are
using overseas
servers to deliver
their messages.
Scary Spam Stats
Spammers also use viruses and
worms to attack unsuspecting
computers and cause them to
deliver their messages.
These computers
are called
Zombies
Scary Spam Stats
Spam cost
U.S. Businesses
$10 Billion
in 2003
(online
(online service)
service)
Scary Spam Stats
77% of spam is not fraudulent
(excluding pornography)
The Can-Spam Act
of 2003
Can-Spam Act of 2003
• The DMA and most large ISPs
opposed national legislation.
• By 2003, 26 States, including
Arkansas, had passed anti-spam
legislation.
• Numerous proposals competed in
Congress, but none could get
sufficient traction.
Can-Spam Act of 2003
• In late 2003, California passed a
100% ban on all spam being sent to
California recipients. The new law
had an effective date of Jan. 1, 2004.
• The DMA and large ISPs realized
that the multiplicity of state laws
was a bad thing and reversed their
position on national legislation.
Can-Spam Act of 2003
• Congress took the front-runner,
Burns Wyden, modified it and
rushed it through.
• Congress “punted” on anything
controversial or time consuming to
resolve:
• Do not spam registry
• “Bounty” for turning in
spammers
The Can-Spam Act means
You Can Spam
Can-Spam Act of 2003
The Act’s definition of Spam:
“Any electronic mail message the
primary purpose of which is the
commercial advertisement or
promotion of a commercial
product of service (including
content on an Internet website
operated for a commercial
purpose).”
Can-Spam Act of 2003
• The FTC has primary enforcement
powers and must issue “primary
purpose” rulemaking to define key
terms.
• The FTC has yet to issue final
rulemaking, but the Act is currently
in force.
Can-Spam Act of 2003
What the Act Requires
• The header, “from” line, and subject
line must not be false or misleading.
• Every solicitation must clearly and
conspicuously include a functioning
return address or other Internetbased mechanism to allow
recipients to opt-out.
Can-Spam Act of 2003
What the Act Requires
• The sender must remove anyone
who requests it within 10 business
days of the request.
• This is not required if the person
subsequently re-subscribes.
Can-Spam Act of 2003
Each e-mail solicitation must contain
the following:
• Clear and conspicuous
identification that the e-mail is an
advertisement or solicitation;
• Clear and conspicuous notice of
the opportunity to opt-out; and
• A valid “physical postal” address
of the sender.
Can-Spam Act of 2003
Notice that the e-mail is a
solicitation is not required if
the recipient has given prior
affirmative consent.
Spammer Sentenced to 7 Years
in Prison
A man who sent 850 million
junk e-mails through
accounts he opened with
stolen identities was
sentenced to up to seven
years in prison on
Thursday.
May 28, 2004
Can-Spam Act of 2003
So what relevance
does all this have for
attorneys?
The Rules
of
Professional Responsibility
Rules of Professional Responsibility
The Easy Case
The Rules obviously apply if an
e-mail contains direct
promotion of the attorney’s
services or would otherwise
qualify as solicitation of
potential clients.
Rules of Professional Responsibility
The Tougher Case
What if the e-mail or
e-newsletter does not contain
direct promotion but rather
contains useful information,
current events, or legal
updates?
Rules of Professional Responsibility
Traditionally, these types of
legal communications have not
been considered advertising in
spite of their marketing
benefit.
Can-Spam may change this.
Rules of Professional Responsibility
The key is in the definition
of “primary purpose”:
The FTC is considering defining
the term to mean that the
marketing message is
“more than incidental to the email.”
What Rules Apply?
The Advertising Rules – 7.1-7.5
• Rule 7.1
• Can-Spam only prohibits (and
criminalizes) fraudulent
statements.
• Rule 7.1 governs that which is
not fraudulent, but may not
be 100% truthful.
What Rules Apply?
Rule 7.1: The Content
• Do not make false or
misleading statements – your
communication may not
contain a material
misrepresentation of fact or
law or omit a necessary fact.
• Do not create unjustifiable
expectations of the results
you can obtain.
What Rules Apply?
Can-Spam: The Structure
• Can-Spam requires that the
transmission information not be
materially false or misleading.
• Technically accurate
information obtained in a
fraudulent manner is prohibited.
What Rules Apply?
What does this mean?
• The attorney or firm must ensure
that whoever is sending the enewsletter is transmitting
accurate information.
• Some e-newsletter services
provide legitimate services to
one set of clients while
spamming for others.
What Rules Apply?
Rule 7.2: You May Advertise
Because the Rule predates the
Internet, it does not specifically
address websites or e-mail.
Nonetheless, the term “written
communication” fairly can be
interpreted to include e-mail.
What Rules Apply?
Rule 7.2
• Retain a copy of any e-mail
communications for 5 years.
• Keep track of to whom and when
the communication was sent.
• Include the name and geographic
location of at least one attorney
licensed to practice in Arkansas.
What Rules Apply?
Can-Spam & 7.2
• Can-Spam requires a “physical
postal address” be included.
This may mean that a P.O. Box
or mail drop would be allowed.
• Rule 7.2 requires a geographic
location of the offices. A Mail
drop or P.O. Box in all likelihood
is not sufficient.
What Rules Apply?
Rule 7.3: Solicitation
• A lawyer shall not solicit, by any form of
direct contact. . . professional
employment . .. .when a significant
motive is pecuniary gain.
• EXCEPTION: Solicitation permitted in
writing by regular mail, provided the
word ADVERTISEMENT is included on
the envelope face.
What Rules Apply?
Rule 7.3
On its face, this rule appears to
preclude the use of e-mail for
solicitation of potential clients.
• E-mail can’t be sent by
regular mail
• There is no envelope on
which to write
ADVERTISEMENT
What Rules Apply?
Rule 7.3
Ohio has found that although
7.3 does not apply on its face,
attorneys should use “due
diligence” to ensure their
communications comply.
• Labeling in the subject line
• Inclusion of appropriate text
in the body
What Rules Apply?
Rule 7.4: Specialization
The prohibition against declaring
oneself a “specialist” applies
equally to the context of e-mail
communication and e-newsletters.
If it’s not acceptable in a firm
brochure or print ad, it’s not
acceptable in an e-mail message.
What Rules Apply?
Rule 7.5: What’s in a Name
A trade name is permissible so long
as it does not violate Rule 7.1
The name cannot be false or
misleading.
A domain name may be considered
a trade name unless it is the name
of the firm.
What Rules Apply?
Rule 7.5 & Can-Spam
The “from” line cannot be false or
misleading
Example:
From: Mass Tort Attorney
permissible from
a mass tort attorney
impermissible from
a tax attorney
What Rules Apply?
Rule 7.5 & Can-Spam
Odds are if you comply with
the requirements of 7.5, you
will satisfy Can-Spam as well.
Best Practices
Best Practices
Overview – Best Practices
•
•
•
•
•
•
E-Mail Template
– Notice
– Opt-Out and Opt-In
– Physical Address
Distribution
– Who can distribute?
Systems Integration
Staff Instruction and Training
Documentation
Compliance Testing
Best Practices
1. "It is unlawful for any person to initiate the
transmission of any commercial electronic mail message
... unless the message provides clear and conspicuous
identification that the message is an advertisement or
solicitation...".
[The FTC's regulatory authority] "may not be construed to
authorize the Commission to establish a requirement pursuant
to section 5(a)(5)(A) to include any specific words, characters,
marks, or labels in a commercial electronic mail message..."
4. ... unless the message provides ... a valid physical postal
address of the sender."
Best Practices
2. “…clear and conspicuous notice of the opportunity
... to decline to receive further commercial electronic
mail messages from the sender
3. MORE DETAILED OPTIONS POSSIBLE.—The person
initiating a commercial electronic mail message may
comply with subparagraph (A)(i) by providing the
recipient a list or menu from which the recipient may
choose the specific types of commercial electronic mail
messages the recipient wants to receive or does not
want to receive from the sender,if the list or menu
includes an option under which the recipient may
choose not to receive any commercial electronic mail
messages from the sender.
Best Practices
Distribution and Systems
• Distribution - Who can distribute?
– Individual Attorneys (inc. assistants
& paralegals)
– Marketing Department
– Both?
• Systems Integration
– How do the opt-outs, out-ins etc
get tied to e-mails lists, databases,
CRM software?
Best Practices
Administrative
• Staff Instruction and Training
– Reliance on osmosis does not work
• Documentation
– Document your procedures
• Compliance Testing
– How do you know they are
doing what they are supposed
to be doing?
Best Practices
• Ask clients to agree in advance to
e-mail communication.
• Include an opt-out in each and
every e-newsletter and honor
opt-out requests.
• Ensure that header, subject, and
from line information is accurate,
whether sent by you or a third party.
Best Practices
• If the content of the message is
primarily commercial rather than
informative (or if a significant
motive is pecuniary gain), include
clear and conspicuous
identification that the message is
an advertisement or solicitation.
• Provide a physical (street) address.
Best Practices
Recommended but not Required
• Double opt-in.
• Letting the recipient know how
you got his or her e-mail address.
.net
One Hundred Eighth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the seventh day of January, two thousand and three
An Act
To regulate interstate commerce by imposing limitations and penalties on the
transmission of unsolicited commercial electronic mail via the Internet.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003', or the `CAN-SPAM Act of
2003'.
SEC. 2. CONGRESSIONAL FINDINGS AND POLICY.
(a) FINDINGS- The Congress finds the following:
(1) Electronic mail has become an extremely important and
popular means of communication, relied on by millions of
Americans on a daily basis for personal and commercial purposes.
Its low cost and global reach make it extremely convenient and
efficient, and offer unique opportunities for the development and
growth of frictionless commerce.
(2) The convenience and efficiency of electronic mail are
threatened by the extremely rapid growth in the volume of
unsolicited commercial electronic mail. Unsolicited commercial
electronic mail is currently estimated to account for over half of all
electronic mail traffic, up from an estimated 7 percent in 2001, and
the volume continues to rise. Most of these messages are
fraudulent or deceptive in one or more respects.
(3) The receipt of unsolicited commercial electronic mail may
result in costs to recipients who cannot refuse to accept such mail
and who incur costs for the storage of such mail, or for the time
spent accessing, reviewing, and discarding such mail, or for both.
(4) The receipt of a large number of unwanted messages also
decreases the convenience of electronic mail and creates a risk that
wanted electronic mail messages, both commercial and
noncommercial, will be lost, overlooked, or discarded amidst the
larger volume of unwanted messages, thus reducing the reliability
and usefulness of electronic mail to the recipient.
(5) Some commercial electronic mail contains material that many
recipients may consider vulgar or pornographic in nature.
(6) The growth in unsolicited commercial electronic mail imposes
significant monetary costs on providers of Internet access services,
businesses, and educational and nonprofit institutions that carry
and receive such mail, as there is a finite volume of mail that such
providers, businesses, and institutions can handle without further
investment in infrastructure.
(7) Many senders of unsolicited commercial electronic mail
purposefully disguise the source of such mail.
(8) Many senders of unsolicited commercial electronic mail
purposefully include misleading information in the messages'
subject lines in order to induce the recipients to view the messages.
(9) While some senders of commercial electronic mail messages
provide simple and reliable ways for recipients to reject (or `optout' of) receipt of commercial electronic mail from such senders in
the future, other senders provide no such `opt-out' mechanism, or
refuse to honor the requests of recipients not to receive electronic
mail from such senders in the future, or both.
(10) Many senders of bulk unsolicited commercial electronic mail
use computer programs to gather large numbers of electronic mail
addresses on an automated basis from Internet websites or online
services where users must post their addresses in order to make full
use of the website or service.
(11) Many States have enacted legislation intended to regulate or
reduce unsolicited commercial electronic mail, but these statutes
impose different standards and requirements. As a result, they do
not appear to have been successful in addressing the problems
associated with unsolicited commercial electronic mail, in part
because, since an electronic mail address does not specify a
geographic location, it can be extremely difficult for law-abiding
businesses to know with which of these disparate statutes they are
required to comply.
(12) The problems associated with the rapid growth and abuse of
unsolicited commercial electronic mail cannot be solved by
Federal legislation alone. The development and adoption of
technological approaches and the pursuit of cooperative efforts
with other countries will be necessary as well.
(b) CONGRESSIONAL DETERMINATION OF PUBLIC POLICY- On
the basis of the findings in subsection (a), the Congress determines that-(1) there is a substantial government interest in regulation of
commercial electronic mail on a nationwide basis;
(2) senders of commercial electronic mail should not mislead
recipients as to the source or content of such mail; and
(3) recipients of commercial electronic mail have a right to decline
to receive additional commercial electronic mail from the same
source.
SEC. 3. DEFINITIONS.
In this Act:
(1) AFFIRMATIVE CONSENT- The term `affirmative consent',
when used with respect to a commercial electronic mail message,
means that-(A) the recipient expressly consented to receive the
message, either in response to a clear and conspicuous
request for such consent or at the recipient's own initiative;
and
(B) if the message is from a party other than the party to
which the recipient communicated such consent, the
recipient was given clear and conspicuous notice at the
time the consent was communicated that the recipient's
electronic mail address could be transferred to such other
party for the purpose of initiating commercial electronic
mail messages.
(2) Commercial electronic mail message(A) IN GENERAL- The term `commercial electronic mail
message' means any electronic mail message the primary
purpose of which is the commercial advertisement or
promotion of a commercial product or service (including
content on an Internet website operated for a commercial
purpose).
(B) TRANSACTIONAL OR RELATIONSHIP
MESSAGES- The term `commercial electronic mail
message' does not include a transactional or relationship
message.
(C) REGULATIONS REGARDING PRIMARY
PURPOSE- Not later than 12 months after the date of the
enactment of this Act, the Commission shall issue
regulations pursuant to section 13 defining the relevant
criteria to facilitate the determination of the primary
purpose of an electronic mail message.
(D) REFERENCE TO COMPANY OR WEBSITE- The
inclusion of a reference to a commercial entity or a link to
the website of a commercial entity in an electronic mail
message does not, by itself, cause such message to be
treated as a commercial electronic mail message for
purposes of this Act if the contents or circumstances of the
message indicate a primary purpose other than commercial
advertisement or promotion of a commercial product or
service.
(3) COMMISSION- The term `Commission' means the Federal
Trade Commission.
(4) DOMAIN NAME- The term `domain name' means any
alphanumeric designation which is registered with or assigned by
any domain name registrar, domain name registry, or other domain
name registration authority as part of an electronic address on the
Internet.
(5) ELECTRONIC MAIL ADDRESS- The term `electronic mail
address' means a destination, commonly expressed as a string of
characters, consisting of a unique user name or mailbox
(commonly referred to as the `local part') and a reference to an
Internet domain (commonly referred to as the `domain part'),
whether or not displayed, to which an electronic mail message can
be sent or delivered.
(6) ELECTRONIC MAIL MESSAGE- The term `electronic mail
message' means a message sent to a unique electronic mail address.
(7) FTC ACT- The term `FTC Act' means the Federal Trade
Commission Act (15 U.S.C. 41 et seq.).
(8) HEADER INFORMATION- The term `header information'
means the source, destination, and routing information attached to
an electronic mail message, including the originating domain name
and originating electronic mail address, and any other information
that appears in the line identifying, or purporting to identify, a
person initiating the message.
(9) INITIATE- The term `initiate', when used with respect to a
commercial electronic mail message, means to originate or
transmit such message or to procure the origination or transmission
of such message, but shall not include actions that constitute
routine conveyance of such message. For purposes of this
paragraph, more than one person may be considered to have
initiated a message.
(10) INTERNET- The term `Internet' has the meaning given that
term in the Internet Tax Freedom Act (47 U.S.C. 151 nt).
(11) INTERNET ACCESS SERVICE- The term `Internet access
service' has the meaning given that term in section 231(e)(4) of the
Communications Act of 1934 (47 U.S.C. 231(e)(4)).
(12) PROCURE- The term `procure', when used with respect to the
initiation of a commercial electronic mail message, means
intentionally to pay or provide other consideration to, or induce,
another person to initiate such a message on one's behalf.
(13) PROTECTED COMPUTER- The term `protected computer'
has the meaning given that term in section 1030(e)(2)(B) of title
18, United States Code.
(14) RECIPIENT- The term `recipient', when used with respect to
a commercial electronic mail message, means an authorized user of
the electronic mail address to which the message was sent or
delivered. If a recipient of a commercial electronic mail message
has one or more electronic mail addresses in addition to the
address to which the message was sent or delivered, the recipient
shall be treated as a separate recipient with respect to each such
address. If an electronic mail address is reassigned to a new user,
the new user shall not be treated as a recipient of any commercial
electronic mail message sent or delivered to that address before it
was reassigned.
(15) ROUTINE CONVEYANCE- The term `routine conveyance'
means the transmission, routing, relaying, handling, or storing,
through an automatic technical process, of an electronic mail
message for which another person has identified the recipients or
provided the recipient addresses.
(16) SENDER(A) IN GENERAL- Except as provided in subparagraph
(B), the term `sender', when used with respect to a
commercial electronic mail message, means a person who
initiates such a message and whose product, service, or
Internet web site is advertised or promoted by the message.
(B) SEPARATE LINES OF BUSINESS OR DIVISIONSIf an entity operates through separate lines of business or
divisions and holds itself out to the recipient throughout the
message as that particular line of business or division rather
than as the entity of which such line of business or division
is a part, then the line of business or the division shall be
treated as the sender of such message for purposes of this
Act.
(17) Transactional or relationship message(A) IN GENERAL- The term `transactional or relationship
message' means an electronic mail message the primary
purpose of which is-(i) to facilitate, complete, or confirm a commercial
transaction that the recipient has previously agreed
to enter into with the sender;
(ii) to 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;
(iii) to provide-(I) notification concerning a change in the
terms or features of;
(II) notification of a change in the recipient's
standing or status with respect to; or
(III) at regular periodic intervals, account
balance information or other type of account
statement with respect to,
a subscription, membership, account, loan, or
comparable ongoing commercial relationship
involving the ongoing purchase or use by the
recipient of products or services offered by the
sender;
(iv) to provide information directly related to an
employment relationship or related benefit plan in
which the recipient is currently involved,
participating, or enrolled; or
(v) to 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.
(B) MODIFICATION OF DEFINITION- The Commission
by regulation pursuant to section 13 may modify the
definition in subparagraph (A) to expand or contract the
categories of messages that are treated as transactional or
relationship messages for purposes of this Act to the extent
that such modification is necessary to accommodate
changes in electronic mail technology or practices and
accomplish the purposes of this Act.
SEC. 4. PROHIBITION AGAINST PREDATORY AND ABUSIVE COMMERCIAL EMAIL.
(a) OFFENSE(1) IN GENERAL- Chapter 47 of title 18, United States Code, is
amended by adding at the end the following new section:
`Sec. 1037. Fraud and related activity in connection with electronic mail
`(a) IN GENERAL- Whoever, in or affecting interstate or foreign
commerce, knowingly-`(1) accesses a protected computer without authorization, and
intentionally initiates the transmission of multiple commercial
electronic mail messages from or through such computer,
`(2) uses a protected computer to relay or retransmit multiple
commercial electronic mail messages, with the intent to deceive or
mislead recipients, or any Internet access service, as to the origin
of such messages,
`(3) materially falsifies header information in multiple commercial
electronic mail messages and intentionally initiates the
transmission of such messages,
`(4) registers, using information that materially falsifies the
identity of the actual registrant, for five or more electronic mail
accounts or online user accounts or two or more domain names,
and intentionally initiates the transmission of multiple commercial
electronic mail messages from any combination of such accounts
or domain names, or
`(5) falsely represents oneself to be the registrant or the legitimate
successor in interest to the registrant of 5 or more Internet Protocol
addresses, and intentionally initiates the transmission of multiple
commercial electronic mail messages from such addresses,
or conspires to do so, shall be punished as provided in subsection (b).
`(b) PENALTIES- The punishment for an offense under subsection (a) is-`(1) a fine under this title, imprisonment for not more than 5 years,
or both, if-`(A) the offense is committed in furtherance of any felony
under the laws of the United States or of any State; or
`(B) the defendant has previously been convicted under this
section or section 1030, or under the law of any State for
conduct involving the transmission of multiple commercial
electronic mail messages or unauthorized access to a
computer system;
`(2) a fine under this title, imprisonment for not more than 3 years,
or both, if-`(A) the offense is an offense under subsection (a)(1);
`(B) the offense is an offense under subsection (a)(4) and
involved 20 or more falsified electronic mail or online user
account registrations, or 10 or more falsified domain name
registrations;
`(C) the volume of electronic mail messages transmitted in
furtherance of the offense exceeded 2,500 during any 24hour period, 25,000 during any 30-day period, or 250,000
during any 1-year period;
`(D) the offense caused loss to one or more persons
aggregating $5,000 or more in value during any 1-year
period;
`(E) as a result of the offense any individual committing the
offense obtained anything of value aggregating $5,000 or
more during any 1-year period; or
`(F) the offense was undertaken by the defendant in concert
with three or more other persons with respect to whom the
defendant occupied a position of organizer or leader; and
`(3) a fine under this title or imprisonment for not more than 1
year, or both, in any other case.
`(c) FORFEITURE-
`(1) IN GENERAL- The court, in imposing sentence on a person
who is convicted of an offense under this section, shall order that
the defendant forfeit to the United States-`(A) any property, real or personal, constituting or traceable
to gross proceeds obtained from such offense; and
`(B) any equipment, software, or other technology used or
intended to be used to commit or to facilitate the
commission of such offense.
`(2) PROCEDURES- The procedures set forth in section 413 of the
Controlled Substances Act (21 U.S.C. 853), other than subsection
(d) of that section, and in Rule 32.2 of the Federal Rules of
Criminal Procedure, shall apply to all stages of a criminal
forfeiture proceeding under this section.
`(d) DEFINITIONS- In this section:
`(1) LOSS- The term `loss' has the meaning given that term in
section 1030(e) of this title.
`(2) MATERIALLY- For purposes of paragraphs (3) and (4) of
subsection (a), header information or registration information is
materially falsified if it is altered or concealed in a manner that
would impair the ability of a recipient of the message, an Internet
access service processing the message on behalf of a recipient, a
person alleging a violation of this section, or a law enforcement
agency to identify, locate, or respond to a person who initiated the
electronic mail message or to investigate the alleged violation.
`(3) MULTIPLE- The term `multiple' means more than 100
electronic mail messages during a 24-hour period, more than 1,000
electronic mail messages during a 30-day period, or more than
10,000 electronic mail messages during a 1-year period.
`(4) OTHER TERMS- Any other term has the meaning given that
term by section 3 of the CAN-SPAM Act of 2003.'.
(2) CONFORMING AMENDMENT- The chapter analysis for
chapter 47 of title 18, United States Code, is amended by adding at
the end the following:
`Sec.
`1037. Fraud and related activity in connection with electronic
mail.'.
(b) UNITED STATES SENTENCING COMMISSION(1) DIRECTIVE- Pursuant to its authority under section 994(p) of
title 28, United States Code, and in accordance with this section,
the United States Sentencing Commission shall review and, as
appropriate, amend the sentencing guidelines and policy statements
to provide appropriate penalties for violations of section 1037 of
title 18, United States Code, as added by this section, and other
offenses that may be facilitated by the sending of large quantities
of unsolicited electronic mail.
(2) REQUIREMENTS- In carrying out this subsection, the
Sentencing Commission shall consider providing sentencing
enhancements for-(A) those convicted under section 1037 of title 18, United
States Code, who-(i) obtained electronic mail addresses through
improper means, including-(I) harvesting electronic mail addresses of
the users of a website, proprietary service, or
other online public forum operated by
another person, without the authorization of
such person; and
(II) randomly generating electronic mail
addresses by computer; or
(ii) knew that the commercial electronic mail
messages involved in the offense contained or
advertised an Internet domain for which the
registrant of the domain had provided false
registration information; and
(B) those convicted of other offenses, including offenses
involving fraud, identity theft, obscenity, child
pornography, and the sexual exploitation of children, if
such offenses involved the sending of large quantities of
electronic mail.
(c) SENSE OF CONGRESS- It is the sense of Congress that-(1) Spam has become the method of choice for those who
distribute pornography, perpetrate fraudulent schemes, and
introduce viruses, worms, and Trojan horses into personal and
business computer systems; and
(2) the Department of Justice should use all existing law
enforcement tools to investigate and prosecute those who send
bulk commercial e-mail to facilitate the commission of Federal
crimes, including the tools contained in chapters 47 and 63 of title
18, United States Code (relating to fraud and false statements);
chapter 71 of title 18, United States Code (relating to obscenity);
chapter 110 of title 18, United States Code (relating to the sexual
exploitation of children); and chapter 95 of title 18, United States
Code (relating to racketeering), as appropriate.
SEC. 5. OTHER PROTECTIONS FOR USERS OF COMMERCIAL ELECTRONIC
MAIL.
(a) REQUIREMENTS FOR TRANSMISSION OF MESSAGES(1) PROHIBITION OF FALSE OR MISLEADING
TRANSMISSION INFORMATION- It is unlawful for any person
to initiate the transmission, to a protected computer, of a
commercial electronic mail message, or a transactional or
relationship message, that contains, or is accompanied by, header
information that is materially false or materially misleading. For
purposes of this paragraph-(A) header information that is technically accurate but
includes an originating electronic mail address, domain
name, or Internet Protocol address the access to which for
purposes of initiating the message was obtained by means
of false or fraudulent pretenses or representations shall be
considered materially misleading;
(B) a `from' line (the line identifying or purporting to
identify a person initiating the message) that accurately
identifies any person who initiated the message shall not be
considered materially false or materially misleading; and
(C) header information shall be considered materially
misleading if it fails to identify accurately a protected
computer used to initiate the message because the person
initiating the message knowingly uses another protected
computer to relay or retransmit the message for purposes of
disguising its origin.
(2) PROHIBITION OF DECEPTIVE SUBJECT HEADINGS- It is
unlawful for any person to initiate the transmission to a protected
computer of a commercial electronic mail message if such person
has actual knowledge, or knowledge fairly implied on the basis of
objective circumstances, that a subject heading of the message
would be likely to mislead a recipient, acting reasonably under the
circumstances, about a material fact regarding the contents or
subject matter of the message (consistent with the criteria used in
enforcement of section 5 of the Federal Trade Commission Act (15
U.S.C. 45)).
(3) Inclusion of return address or comparable mechanism in
commercial electronic mail(A) IN GENERAL- It is unlawful for any person to initiate
the transmission to a protected computer of a commercial
electronic mail message that does not contain a functioning
return electronic mail address or other Internet-based
mechanism, clearly and conspicuously displayed, that-(i) a recipient may use to submit, in a manner
specified in the message, a reply electronic mail
message or other form of Internet-based
communication requesting not to receive future
commercial electronic mail messages from that
sender at the electronic mail address where the
message was received; and
(ii) remains capable of receiving such messages or
communications for no less than 30 days after the
transmission of the original message.
(B) MORE DETAILED OPTIONS POSSIBLE- The
person initiating a commercial electronic mail message
may comply with subparagraph (A)(i) by providing the
recipient a list or menu from which the recipient may
choose the specific types of commercial electronic mail
messages the recipient wants to receive or does not want to
receive from the sender, if the list or menu includes an
option under which the recipient may choose not to receive
any commercial electronic mail messages from the sender.
(C) TEMPORARY INABILITY TO RECEIVE
MESSAGES OR PROCESS REQUESTS- A return
electronic mail address or other mechanism does not fail to
satisfy the requirements of subparagraph (A) if it is
unexpectedly and temporarily unable to receive messages
or process requests due to a technical problem beyond the
control of the sender if the problem is corrected within a
reasonable time period.
(4) PROHIBITION OF TRANSMISSION OF COMMERCIAL
ELECTRONIC MAIL AFTER OBJECTION(A) IN GENERAL- If a recipient makes a request using a
mechanism provided pursuant to paragraph (3) not to
receive some or any commercial electronic mail messages
from such sender, then it is unlawful-(i) for the sender to initiate the transmission to the
recipient, more than 10 business days after the
receipt of such request, of a commercial electronic
mail message that falls within the scope of the
request;
(ii) for any person acting on behalf of the sender to
initiate the transmission to the recipient, more than
10 business days after the receipt of such request, of
a commercial electronic mail message with actual
knowledge, or knowledge fairly implied on the
basis of objective circumstances, that such message
falls within the scope of the request;
(iii) for any person acting on behalf of the sender to
assist in initiating the transmission to the recipient,
through the provision or selection of addresses to
which the message will be sent, of a commercial
electronic mail message with actual knowledge, or
knowledge fairly implied on the basis of objective
circumstances, that such message would violate
clause (i) or (ii); or
(iv) for the sender, or any other person who knows
that the recipient has made such a request, to sell,
lease, exchange, or otherwise transfer or release the
electronic mail address of the recipient (including
through any transaction or other transfer involving
mailing lists bearing the electronic mail address of
the recipient) for any purpose other than compliance
with this Act or other provision of law.
(B) SUBSEQUENT AFFIRMATIVE CONSENT- A
prohibition in subparagraph (A) does not apply if there is
affirmative consent by the recipient subsequent to the
request under subparagraph (A).
(5) INCLUSION OF IDENTIFIER, OPT-OUT, AND PHYSICAL
ADDRESS IN COMMERCIAL ELECTRONIC MAIL- (A) It is
unlawful for any person to initiate the transmission of any
commercial electronic mail message to a protected computer
unless the message provides-(i) clear and conspicuous identification that the message is
an advertisement or solicitation;
(ii) clear and conspicuous notice of the opportunity under
paragraph (3) to decline to receive further commercial
electronic mail messages from the sender; and
(iii) a valid physical postal address of the sender.
(B) Subparagraph (A)(i) does not apply to the transmission of a
commercial electronic mail message if the recipient has given prior
affirmative consent to receipt of the message.
(6) MATERIALLY- For purposes of paragraph (1), the term
`materially', when used with respect to false or misleading header
information, includes the alteration or concealment of header
information in a manner that would impair the ability of an Internet
access service processing the message on behalf of a recipient, a
person alleging a violation of this section, or a law enforcement
agency to identify, locate, or respond to a person who initiated the
electronic mail message or to investigate the alleged violation, or
the ability of a recipient of the message to respond to a person who
initiated the electronic message.
(b) Aggravated Violations Relating to Commercial Electronic Mail(1) Address harvesting and dictionary attacks(A) IN GENERAL- It is unlawful for any person to initiate
the transmission, to a protected computer, of a commercial
electronic mail message that is unlawful under subsection
(a), or to assist in the origination of such message through
the provision or selection of addresses to which the
message will be transmitted, if such person had actual
knowledge, or knowledge fairly implied on the basis of
objective circumstances, that--
(i) the electronic mail address of the recipient was
obtained using an automated means from an
Internet website or proprietary online service
operated by another person, and such website or
online service included, at the time the address was
obtained, a notice stating that the operator of such
website or online service will not give, sell, or
otherwise transfer addresses maintained by such
website or online service to any other party for the
purposes of initiating, or enabling others to initiate,
electronic mail messages; or
(ii) the electronic mail address of the recipient was
obtained using an automated means that generates
possible electronic mail addresses by combining
names, letters, or numbers into numerous
permutations.
(B) DISCLAIMER- Nothing in this paragraph creates an
ownership or proprietary interest in such electronic mail
addresses.
(2) AUTOMATED CREATION OF MULTIPLE ELECTRONIC
MAIL ACCOUNTS- It is unlawful for any person to use scripts or
other automated means to register for multiple electronic mail
accounts or online user accounts from which to transmit to a
protected computer, or enable another person to transmit to a
protected computer, a commercial electronic mail message that is
unlawful under subsection (a).
(3) RELAY OR RETRANSMISSION THROUGH
UNAUTHORIZED ACCESS- It is unlawful for any person
knowingly to relay or retransmit a commercial electronic mail
message that is unlawful under subsection (a) from a protected
computer or computer network that such person has accessed
without authorization.
(c) SUPPLEMENTARY RULEMAKING AUTHORITY- The
Commission shall by regulation, pursuant to section 13-(1) modify the 10-business-day period under subsection (a)(4)(A)
or subsection (a)(4)(B), or both, if the Commission determines that
a different period would be more reasonable after taking into
account-(A) the purposes of subsection (a);
(B) the interests of recipients of commercial electronic
mail; and
(C) the burdens imposed on senders of lawful commercial
electronic mail; and
(2) specify additional activities or practices to which subsection (b)
applies if the Commission determines that those activities or
practices are contributing substantially to the proliferation of
commercial electronic mail messages that are unlawful under
subsection (a).
(d) REQUIREMENT TO PLACE WARNING LABELS ON
COMMERCIAL ELECTRONIC MAIL CONTAINING SEXUALLY
ORIENTED MATERIAL(1) IN GENERAL- No person may initiate in or affecting interstate
commerce the transmission, to a protected computer, of any
commercial electronic mail message that includes sexually
oriented material and-(A) fail to include in subject heading for the electronic mail
message the marks or notices prescribed by the
Commission under this subsection; or
(B) fail to provide that the matter in the message that is
initially viewable to the recipient, when the message is
opened by any recipient and absent any further actions by
the recipient, includes only-(i) to the extent required or authorized pursuant to
paragraph (2), any such marks or notices;
(ii) the information required to be included in the
message pursuant to subsection (a)(5); and
(iii) instructions on how to access, or a mechanism
to access, the sexually oriented material.
(2) PRIOR AFFIRMATIVE CONSENT- Paragraph (1) does not
apply to the transmission of an electronic mail message if the
recipient has given prior affirmative consent to receipt of the
message.
(3) PRESCRIPTION OF MARKS AND NOTICES- Not later than
120 days after the date of the enactment of this Act, the
Commission in consultation with the Attorney General shall
prescribe clearly identifiable marks or notices to be included in or
associated with commercial electronic mail that contains sexually
oriented material, in order to inform the recipient of that fact and to
facilitate filtering of such electronic mail. The Commission shall
publish in the Federal Register and provide notice to the public of
the marks or notices prescribed under this paragraph.
(4) DEFINITION- In this subsection, the term `sexually oriented
material' means any material that depicts sexually explicit conduct
(as that term is defined in section 2256 of title 18, United States
Code), unless the depiction constitutes a small and insignificant
part of the whole, the remainder of which is not primarily devoted
to sexual matters.
(5) PENALTY- Whoever knowingly violates paragraph (1) shall
be fined under title 18, United States Code, or imprisoned not more
than 5 years, or both.
SEC. 6. BUSINESSES KNOWINGLY PROMOTED BY ELECTRONIC MAIL WITH
FALSE OR MISLEADING TRANSMISSION INFORMATION.
(a) IN GENERAL- It is unlawful for a person to promote, or allow the
promotion of, that person's trade or business, or goods, products, property,
or services sold, offered for sale, leased or offered for lease, or otherwise
made available through that trade or business, in a commercial electronic
mail message the transmission of which is in violation of section 5(a)(1) if
that person-(1) knows, or should have known in the ordinary course of that
person's trade or business, that the goods, products, property, or
services sold, offered for sale, leased or offered for lease, or
otherwise made available through that trade or business were being
promoted in such a message;
(2) received or expected to receive an economic benefit from such
promotion; and
(3) took no reasonable action-(A) to prevent the transmission; or
(B) to detect the transmission and report it to the
Commission.
(b) Limited Enforcement Against Third Parties(1) IN GENERAL- Except as provided in paragraph (2), a person
(hereinafter referred to as the `third party') that provides goods,
products, property, or services to another person that violates
subsection (a) shall not be held liable for such violation.
(2) EXCEPTION- Liability for a violation of subsection (a) shall
be imputed to a third party that provides goods, products, property,
or services to another person that violates subsection (a) if that
third party-(A) owns, or has a greater than 50 percent ownership or
economic interest in, the trade or business of the person
that violated subsection (a); or
(B)(i) has actual knowledge that goods, products, property,
or services are promoted in a commercial electronic mail
message the transmission of which is in violation of section
5(a)(1); and
(ii) receives, or expects to receive, an economic benefit
from such promotion.
(c) EXCLUSIVE ENFORCEMENT BY FTC- Subsections (f) and (g) of
section 7 do not apply to violations of this section.
(d) SAVINGS PROVISION- Except as provided in section 7(f)(8),
nothing in this section may be construed to limit or prevent any action that
may be taken under this Act with respect to any violation of any other
section of this Act.
SEC. 7. ENFORCEMENT GENERALLY.
(a) VIOLATION IS UNFAIR OR DECEPTIVE ACT OR PRACTICEExcept as provided in subsection (b), this Act shall be enforced by the
Commission as if the violation of this Act were an unfair or deceptive act
or practice proscribed under section 18(a)(1)(B) of the Federal Trade
Commission Act (15 U.S.C. 57a(a)(1)(B)).
(b) ENFORCEMENT BY CERTAIN OTHER AGENCIES- Compliance
with this Act shall be enforced-(1) under section 8 of the Federal Deposit Insurance Act (12
U.S.C. 1818), in the case of-(A) national banks, and Federal branches and Federal
agencies of foreign banks, by the Office of the Comptroller
of the Currency;
(B) member banks of the Federal Reserve System (other
than national banks), branches and agencies of foreign
banks (other than Federal branches, Federal agencies, and
insured State branches of foreign banks), commercial
lending companies owned or controlled by foreign banks,
organizations operating under section 25 or 25A of the
Federal Reserve Act (12 U.S.C. 601 and 611), and bank
holding companies, by the Board;
(C) banks insured by the Federal Deposit Insurance
Corporation (other than members of the Federal Reserve
System) and insured State branches of foreign banks, by the
Board of Directors of the Federal Deposit Insurance
Corporation; and
(D) savings associations the deposits of which are insured
by the Federal Deposit Insurance Corporation, by the
Director of the Office of Thrift Supervision;
(2) under the Federal Credit Union Act (12 U.S.C. 1751 et seq.) by
the Board of the National Credit Union Administration with
respect to any Federally insured credit union;
(3) under the Securities Exchange Act of 1934 (15 U.S.C. 78a et
seq.) by the Securities and Exchange Commission with respect to
any broker or dealer;
(4) under the Investment Company Act of 1940 (15 U.S.C. 80a-1
et seq.) by the Securities and Exchange Commission with respect
to investment companies;
(5) under the Investment Advisers Act of 1940 (15 U.S.C. 80b-1 et
seq.) by the Securities and Exchange Commission with respect to
investment advisers registered under that Act;
(6) under State insurance law in the case of any person engaged in
providing insurance, by the applicable State insurance authority of
the State in which the person is domiciled, subject to section 104
of the Gramm-Bliley-Leach Act (15 U.S.C. 6701), except that in
any State in which the State insurance authority elects not to
exercise this power, the enforcement authority pursuant to this Act
shall be exercised by the Commission in accordance with
subsection (a);
(7) under part A of subtitle VII of title 49, United States Code, by
the Secretary of Transportation with respect to any air carrier or
foreign air carrier subject to that part;
(8) under the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et
seq.) (except as provided in section 406 of that Act (7 U.S.C. 226,
227)), by the Secretary of Agriculture with respect to any activities
subject to that Act;
(9) under the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) by
the Farm Credit Administration with respect to any Federal land
bank, Federal land bank association, Federal intermediate credit
bank, or production credit association; and
(10) under the Communications Act of 1934 (47 U.S.C. 151 et
seq.) by the Federal Communications Commission with respect to
any person subject to the provisions of that Act.
(c) EXERCISE OF CERTAIN POWERS- For the purpose of the exercise
by any agency referred to in subsection (b) of its powers under any Act
referred to in that subsection, a violation of this Act is deemed to be a
violation of a Federal Trade Commission trade regulation rule. In addition
to its powers under any provision of law specifically referred to in
subsection (b), each of the agencies referred to in that subsection may
exercise, for the purpose of enforcing compliance with any requirement
imposed under this Act, any other authority conferred on it by law.
(d) ACTIONS BY THE COMMISSION- The Commission shall prevent
any person from violating this Act in the same manner, by the same
means, and with the same jurisdiction, powers, and duties as though all
applicable terms and provisions of the Federal Trade Commission Act (15
U.S.C. 41 et seq.) were incorporated into and made a part of this Act. Any
entity that violates any provision of that subtitle is subject to the penalties
and entitled to the privileges and immunities provided in the Federal Trade
Commission Act in the same manner, by the same means, and with the
same jurisdiction, power, and duties as though all applicable terms and
provisions of the Federal Trade Commission Act were incorporated into
and made a part of that subtitle.
(e) AVAILABILITY OF CEASE-AND-DESIST ORDERS AND
INJUNCTIVE RELIEF WITHOUT SHOWING OF KNOWLEDGENotwithstanding any other provision of this Act, in any proceeding or
action pursuant to subsection (a), (b), (c), or (d) of this section to enforce
compliance, through an order to cease and desist or an injunction, with
section 5(a)(1)(C), section 5(a)(2), clause (ii), (iii), or (iv) of section
5(a)(4)(A), section 5(b)(1)(A), or section 5(b)(3), neither the Commission
nor the Federal Communications Commission shall be required to allege
or prove the state of mind required by such section or subparagraph.
(f) Enforcement by States(1) CIVIL ACTION- In any case in which the attorney general of a
State, or an official or agency of a State, has reason to believe that
an interest of the residents of that State has been or is threatened or
adversely affected by any person who violates paragraph (1) or (2)
of section 5(a), who violates section 5(d), or who engages in a
pattern or practice that violates paragraph (3), (4), or (5) of section
5(a), of this Act, the attorney general, official, or agency of the
State, as parens patriae, may bring a civil action on behalf of the
residents of the State in a district court of the United States of
appropriate jurisdiction-(A) to enjoin further violation of section 5 of this Act by
the defendant; or
(B) to obtain damages on behalf of residents of the State, in
an amount equal to the greater of-(i) the actual monetary loss suffered by such
residents; or
(ii) the amount determined under paragraph (3).
(2) AVAILABILITY OF INJUNCTIVE RELIEF WITHOUT
SHOWING OF KNOWLEDGE- Notwithstanding any other
provision of this Act, in a civil action under paragraph (1)(A) of
this subsection, the attorney general, official, or agency of the State
shall not be required to allege or prove the state of mind required
by section 5(a)(1)(C), section 5(a)(2), clause (ii), (iii), or (iv) of
section 5(a)(4)(A), section 5(b)(1)(A), or section 5(b)(3).
(3) Statutory damages(A) IN GENERAL- For purposes of paragraph (1)(B)(ii),
the amount determined under this paragraph is the amount
calculated by multiplying the number of violations (with
each separately addressed unlawful message received by or
addressed to such residents treated as a separate violation)
by up to $250.
(B) LIMITATION- For any violation of section 5 (other
than section 5(a)(1)), the amount determined under
subparagraph (A) may not exceed $2,000,000.
(C) AGGRAVATED DAMAGES- The court may increase
a damage award to an amount equal to not more than three
times the amount otherwise available under this paragraph
if-(i) the court determines that the defendant
committed the violation willfully and knowingly; or
(ii) the defendant's unlawful activity included one or
more of the aggravating violations set forth in
section 5(b).
(D) REDUCTION OF DAMAGES- In assessing damages
under subparagraph (A), the court may consider whether-(i) the defendant has established and implemented,
with due care, commercially reasonable practices
and procedures designed to effectively prevent such
violations; or
(ii) the violation occurred despite commercially
reasonable efforts to maintain compliance the
practices and procedures to which reference is made
in clause (i).
(4) ATTORNEY FEES- In the case of any successful action under
paragraph (1), the court, in its discretion, may award the costs of
the action and reasonable attorney fees to the State.
(5) RIGHTS OF FEDERAL REGULATORS- The State shall
serve prior written notice of any action under paragraph (1) upon
the Federal Trade Commission or the appropriate Federal regulator
determined under subsection (b) and provide the Commission or
appropriate Federal regulator with a copy of its complaint, except
in any case in which such prior notice is not feasible, in which case
the State shall serve such notice immediately upon instituting such
action. The Federal Trade Commission or appropriate Federal
regulator shall have the right-(A) to intervene in the action;
(B) upon so intervening, to be heard on all matters arising
therein;
(C) to remove the action to the appropriate United States
district court; and
(D) to file petitions for appeal.
(6) CONSTRUCTION- For purposes of bringing any civil action
under paragraph (1), nothing in this Act shall be construed to
prevent an attorney general of a State from exercising the powers
conferred on the attorney general by the laws of that State to-(A) conduct investigations;
(B) administer oaths or affirmations; or
(C) compel the attendance of witnesses or the production of
documentary and other evidence.
(7) VENUE; SERVICE OF PROCESS(A) VENUE- Any action brought under paragraph (1) may
be brought in the district court of the United States that
meets applicable requirements relating to venue under
section 1391 of title 28, United States Code.
(B) SERVICE OF PROCESS- In an action brought under
paragraph (1), process may be served in any district in
which the defendant-(i) is an inhabitant; or
(ii) maintains a physical place of business.
(8) LIMITATION ON STATE ACTION WHILE FEDERAL
ACTION IS PENDING- If the Commission, or other appropriate
Federal agency under subsection (b), has instituted a civil action or
an administrative action for violation of this Act, no State attorney
general, or official or agency of a State, may bring an action under
this subsection during the pendency of that action against any
defendant named in the complaint of the Commission or the other
agency for any violation of this Act alleged in the complaint.
(9) REQUISITE SCIENTER FOR CERTAIN CIVIL ACTIONSExcept as provided in section 5(a)(1)(C), section 5(a)(2), clause
(ii), (iii), or (iv) of section 5(a)(4)(A), section 5(b)(1)(A), or
section 5(b)(3), in a civil action brought by a State attorney
general, or an official or agency of a State, to recover monetary
damages for a violation of this Act, the court shall not grant the
relief sought unless the attorney general, official, or agency
establishes that the defendant acted with actual knowledge, or
knowledge fairly implied on the basis of objective circumstances,
of the act or omission that constitutes the violation.
(g) Action by Provider of Internet Access Service(1) ACTION AUTHORIZED- A provider of Internet access
service adversely affected by a violation of section 5(a)(1), 5(b), or
5(d), or a pattern or practice that violates paragraph (2), (3), (4), or
(5) of section 5(a), may bring a civil action in any district court of
the United States with jurisdiction over the defendant-(A) to enjoin further violation by the defendant; or
(B) to recover damages in an amount equal to the greater
of-(i) actual monetary loss incurred by the provider of
Internet access service as a result of such violation;
or
(ii) the amount determined under paragraph (3).
(2) SPECIAL DEFINITION OF `PROCURE'- In any action
brought under paragraph (1), this Act shall be applied as if the
definition of the term `procure' in section 3(12) contained, after
`behalf' the words `with actual knowledge, or by consciously
avoiding knowing, whether such person is engaging, or will
engage, in a pattern or practice that violates this Act'.
(3) STATUTORY DAMAGES(A) IN GENERAL- For purposes of paragraph (1)(B)(ii),
the amount determined under this paragraph is the amount
calculated by multiplying the number of violations (with
each separately addressed unlawful message that is
transmitted or attempted to be transmitted over the facilities
of the provider of Internet access service, or that is
transmitted or attempted to be transmitted to an electronic
mail address obtained from the provider of Internet access
service in violation of section 5(b)(1)(A)(i), treated as a
separate violation) by-(i) up to $100, in the case of a violation of section
5(a)(1); or
(ii) up to $25, in the case of any other violation of
section 5.
(B) LIMITATION- For any violation of section 5 (other
than section 5(a)(1)), the amount determined under
subparagraph (A) may not exceed $1,000,000.
(C) AGGRAVATED DAMAGES- The court may increase
a damage award to an amount equal to not more than three
times the amount otherwise available under this paragraph
if-(i) the court determines that the defendant
committed the violation willfully and knowingly; or
(ii) the defendant's unlawful activity included one or
more of the aggravated violations set forth in
section 5(b).
(D) REDUCTION OF DAMAGES- In assessing damages
under subparagraph (A), the court may consider whether-(i) the defendant has established and implemented,
with due care, commercially reasonable practices
and procedures designed to effectively prevent such
violations; or
(ii) the violation occurred despite commercially
reasonable efforts to maintain compliance with the
practices and procedures to which reference is made
in clause (i).
(4) ATTORNEY FEES- In any action brought pursuant to
paragraph (1), the court may, in its discretion, require an
undertaking for the payment of the costs of such action, and assess
reasonable costs, including reasonable attorneys' fees, against any
party.
SEC. 8. EFFECT ON OTHER LAWS.
(a) FEDERAL LAW- (1) Nothing in this Act shall be construed to impair
the enforcement of section 223 or 231 of the Communications Act of 1934
(47 U.S.C. 223 or 231, respectively), chapter 71 (relating to obscenity) or
110 (relating to sexual exploitation of children) of title 18, United States
Code, or any other Federal criminal statute.
(2) Nothing in this Act shall be construed to affect in any way the
Commission's authority to bring enforcement actions under FTC Act for
materially false or deceptive representations or unfair practices in
commercial electronic mail messages.
(b) STATE LAW(1) IN GENERAL- This Act supersedes any statute, regulation, or
rule of a State or political subdivision of a State that expressly
regulates the use of electronic mail to send commercial messages,
except to the extent that any such statute, regulation, or rule
prohibits falsity or deception in any portion of a commercial
electronic mail message or information attached thereto.
(2) STATE LAW NOT SPECIFIC TO ELECTRONIC MAILThis Act shall not be construed to preempt the applicability of-(A) State laws that are not specific to electronic mail,
including State trespass, contract, or tort law; or
(B) other State laws to the extent that those laws relate to
acts of fraud or computer crime.
(c) NO EFFECT ON POLICIES OF PROVIDERS OF INTERNET
ACCESS SERVICE- Nothing in this Act shall be construed to have any
effect on the lawfulness or unlawfulness, under any other provision of law,
of the adoption, implementation, or enforcement by a provider of Internet
access service of a policy of declining to transmit, route, relay, handle, or
store certain types of electronic mail messages.
SEC. 9. DO-NOT-E-MAIL REGISTRY.
(a) IN GENERAL- Not later than 6 months after the date of enactment of
this Act, the Commission shall transmit to the Senate Committee on
Commerce, Science, and Transportation and the House of Representatives
Committee on Energy and Commerce a report that-(1) sets forth a plan and timetable for establishing a nationwide
marketing Do-Not-E-Mail registry;
(2) includes an explanation of any practical, technical, security,
privacy, enforceability, or other concerns that the Commission has
regarding such a registry; and
(3) includes an explanation of how the registry would be applied
with respect to children with e-mail accounts.
(b) AUTHORIZATION TO IMPLEMENT- The Commission may
establish and implement the plan, but not earlier than 9 months after the
date of enactment of this Act.
SEC. 10. STUDY OF EFFECTS OF COMMERCIAL ELECTRONIC
MAIL.
(a) IN GENERAL- Not later than 24 months after the date of the
enactment of this Act, the Commission, in consultation with the
Department of Justice and other appropriate agencies, shall submit a report
to the Congress that provides a detailed analysis of the effectiveness and
enforcement of the provisions of this Act and the need (if any) for the
Congress to modify such provisions.
(b) REQUIRED ANALYSIS- The Commission shall include in the report
required by subsection (a)-(1) an analysis of the extent to which technological and
marketplace developments, including changes in the nature of the
devices through which consumers access their electronic mail
messages, may affect the practicality and effectiveness of the
provisions of this Act;
(2) analysis and recommendations concerning how to address
commercial electronic mail that originates in or is transmitted
through or to facilities or computers in other nations, including
initiatives or policy positions that the Federal Government could
pursue through international negotiations, fora, organizations, or
institutions; and
(3) analysis and recommendations concerning options for
protecting consumers, including children, from the receipt and
viewing of commercial electronic mail that is obscene or
pornographic.
SEC. 11. IMPROVING ENFORCEMENT BY PROVIDING REWARDS FOR
INFORMATION ABOUT VIOLATIONS; LABELING.
The Commission shall transmit to the Senate Committee on Commerce,
Science, and Transportation and the House of Representatives Committee
on Energy and Commerce-(1) a report, within 9 months after the date of enactment of this
Act, that sets forth a system for rewarding those who supply
information about violations of this Act, including-(A) procedures for the Commission to grant a reward of not
less than 20 percent of the total civil penalty collected for a
violation of this Act to the first person that-(i) identifies the person in violation of this Act; and
(ii) supplies information that leads to the successful
collection of a civil penalty by the Commission; and
(B) procedures to minimize the burden of submitting a
complaint to the Commission concerning violations of this
Act, including procedures to allow the electronic
submission of complaints to the Commission; and
(2) a report, within 18 months after the date of enactment of this
Act, that sets forth a plan for requiring commercial electronic mail
to be identifiable from its subject line, by means of compliance
with Internet Engineering Task Force Standards, the use of the
characters `ADV' in the subject line, or other comparable
identifier, or an explanation of any concerns the Commission has
that cause the Commission to recommend against the plan.
SEC. 12. RESTRICTIONS ON OTHER TRANSMISSIONS.
Section 227(b)(1) of the Communications Act of 1934 (47 U.S.C.
227(b)(1)) is amended, in the matter preceding subparagraph (A), by
inserting `, or any person outside the United States if the recipient is
within the United States' after `United States'.
SEC. 13. REGULATIONS.
(a) IN GENERAL- The Commission may issue regulations to implement
the provisions of this Act (not including the amendments made by sections
4 and 12). Any such regulations shall be issued in accordance with section
553 of title 5, United States Code.
(b) LIMITATION- Subsection (a) may not be construed to authorize the
Commission to establish a requirement pursuant to section 5(a)(5)(A) to
include any specific words, characters, marks, or labels in a commercial
electronic mail message, or to include the identification required by
section 5(a)(5)(A) in any particular part of such a mail message (such as
the subject line or body).
SEC. 14. APPLICATION TO WIRELESS.
(a) EFFECT ON OTHER LAW- Nothing in this Act shall be interpreted to
preclude or override the applicability of section 227 of the
Communications Act of 1934 (47 U.S.C. 227) or the rules prescribed
under section 3 of the Telemarketing and Consumer Fraud and Abuse
Prevention Act (15 U.S.C. 6102).
(b) FCC RULEMAKING- The Federal Communications Commission, in
consultation with the Federal Trade Commission, shall promulgate rules
within 270 days to protect consumers from unwanted mobile service
commercial messages. The Federal Communications Commission, in
promulgating the rules, shall, to the extent consistent with subsection (c)-(1) provide subscribers to commercial mobile services the ability
to avoid receiving mobile service commercial messages unless the
subscriber has provided express prior authorization to the sender,
except as provided in paragraph (3);
(2) allow recipients of mobile service commercial messages to
indicate electronically a desire not to receive future mobile service
commercial messages from the sender;
(3) take into consideration, in determining whether to subject
providers of commercial mobile services to paragraph (1), the
relationship that exists between providers of such services and
their subscribers, but if the Commission determines that such
providers should not be subject to paragraph (1), the rules shall
require such providers, in addition to complying with the other
provisions of this Act, to allow subscribers to indicate a desire not
to receive future mobile service commercial messages from the
provider-(A) at the time of subscribing to such service; and
(B) in any billing mechanism; and
(4) determine how a sender of mobile service commercial
messages may comply with the provisions of this Act, considering
the unique technical aspects, including the functional and character
limitations, of devices that receive such messages.
(c) OTHER FACTORS CONSIDERED- The Federal Communications
Commission shall consider the ability of a sender of a commercial
electronic mail message to reasonably determine that the message is a
mobile service commercial message.
(d) MOBILE SERVICE COMMERCIAL MESSAGE DEFINED- In this
section, the term `mobile service commercial message' means a
commercial electronic mail message that is transmitted directly to a
wireless device that is utilized by a subscriber of commercial mobile
service (as such term is defined in section 332(d) of the Communications
Act of 1934 (47 U.S.C. 332(d))) in connection with such service.
SEC. 15. SEPARABILITY.
If any provision of this Act or the application thereof to any person or
circumstance is held invalid, the remainder of this Act and the application
of such provision to other persons or circumstances shall not be affected.
SEC. 16. EFFECTIVE DATE.
The provisions of this Act, other than section 9, shall take effect on
January 1, 2004.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
END