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Indiana Enacts Spam Law, But Federal Bill Resurfaces

Indiana Gov. Frank O'Bannon signed anti-spam legislation this month, meaning that nearly 30 states have such legislation on their books.

However, the laws could end up moot if a federal anti-spam bill makes it through Congress this year.

Starting July 1, Indiana will let recipients of unsolicited commercial e-mail sue senders for $500 for each piece of e-mail received in violation of its law.

It bans using third parties' Internet domains without their permission, misrepresenting the source of the e-mail and using false or misleading subject lines, common practices used by spammers.

Indiana will require “ADV:” to be the first four characters of the subject lines of unsolicited commercial e-mail and “ADV:ADLT” to be the first eight characters of subject lines of adult commercial e-mail.

The law also requires marketers to let recipients request their addresses be removed from their e-mail lists. After removing names from their lists, businesses will be prohibited from renting the addresses to other businesses.

But state anti-spam laws would be superseded by a bill reintroduced into the Senate this month.

Though the Controlling the Assault of Non-Solicited Pornography and Marketing bill, or CAN-SPAM Act of 2003, would make it easier for marketers by eliminating a labyrinth of state laws, its current draft has pitfalls for marketers.

For one thing, it makes no mention of the word “bulk,” so presumably single e-mails would be affected. As a result, e-mail service provider Bigfoot Interactive, New York, and consultant Ben Isaacson, former executive director of the Association for Interactive Marketing, issued a joint statement yesterday outlining the bulk issue along with what they consider to be other shortcomings of the bill. Among them:

· The act doesn't treat pornographic e-mailers differently, and should.

· The act limits pre-existing business relationships to three years when many buying cycles are longer.

· Its definitions of “commercial transaction” and “existing commercial relationship” are vague.

· The postal return address requirement is a burden and irrelevant as most spammers use P.O. boxes and fraudulent postal addresses.

Also, the bill as written would require marketers using third-party lists to maintain costly master do-not-e-mail lists.

“While this bill focuses on some of the key areas that need to be addressed, we believe there is an opportunity to build on the work done here to further clarify and distinguish permission-based e-mail communications from spam,” Bigfoot Interactive CEO Al DiGuido said in the statement.

Specifically, CAN-SPAM would ban misleading subject lines and forged headers. Spammers often mask the sources of their transmissions. The act also would require all commercial e-mail to have functioning return addresses or a link recipients can use to opt out of future e-mails that stays working at least 30 days after the original mailing.

CAN-SPAM would require unsolicited marketing e-mail to include “clear and conspicuous identification the message is an advertisement,” clear opt-out instructions and a valid physical postal address.

The act would ban sending commercial e-mail to addresses that were gathered “using an automated means” or gathered from sources with published anti-spam policies.

It would give the Federal Trade Commission enforcement authority. It also would provide for state attorneys general to sue on behalf of residents and for Internet service providers to sue businesses that send unsolicited commercial e-mail across their networks. The bill would let violators be sued for actual monetary losses, or $10 per e-mail up to $500,000, or up to $1.5 million if the sender knowingly violated the act.

The bill also would let ISPs decline to process e-mail at their discretion.

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