Letter: CAN-SPAM Sets Better 'Standard' for Good E-Mail Practices

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I just read Tad Clarke's editorial on providing some common sense to the realities of CAN-SPAM ("Spam Law Worth the Effort," Dec. 15). Though my company would benefit greatly from the most strict law possible (I own a company that has built an e-mail application that takes permission to new levels), I agree the more "friendly" CAN-SPAM will not do what people are predicting: increase spam. If anything, it will form a better "standard" for good e-mail practices for all companies.

I work with a lot of marketing departments who, when we first consulted with them, knew little to nothing about what was the right and wrong thing to do regarding e-mail. But the part that I see people (who have yet to read the bill) miss is the clause about "affirmative consent."

The bill says: The recipient must have 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; or 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. ...[I]f you don't have "affirmative consent" then you will have to send the e-mail with "clear and conspicuous identification that the message is an advertisement or solicitation."

Now, the bill does not clarify what "clear and conspicuous identification" is ... that's the unfortunate part. To underscore Tad's point in the article, it seems to me that legitimate marketers and companies who want to legally spam people will find that any labeling will very likely land their message in the junk folder or filtering server and never get delivered. (Note: our belief is that any commercial/bulk e-mail that doesn't have documented prior consent is, effectively, spam).

This will likely reduce spam from legitimate marketers as e-mails that lack prior consent (similar to the California law) will continue to produce shrinking results, making the medium less attractive versus other marketing mediums.

Elusive, intentional illegal spammers will continue to find shady ways to hide and spam us from here to Neptune. To counter this, perhaps a small percentage of the billions being spent by business and government to stop spam should go into creating a for-profit legal and technical vigilante team (in cooperation/coordination with the big ISPs) that hunts down the real spammers, files high-profile lawsuits and brings them to justice.

CAN-SPAM will have an impact only if it's actually used in the court system with some big-splash results. Otherwise, as I mentioned, it will serve only as a "guideline" for how legitimate marketers should behave and continue to let ruthless spammers avoid justice.

Matt Highsmith, CEO, TailoredMail, Bellevue, WA



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