>>[old material snipped]
>>
>http://www.spamlaws.com/federal/108s877.shtml
>
>Point 1) - "Tell you that you're going to get it when you sign up"
The "standard out" for this is a clause like "and you agree to the
terms referenced on our standard policies page" - which includes a clause
such as "we reserve the right to change these policies at any time and you
agree that it is your responsibility to check for changes". For examples
on exactly this type of clause, look at Yahoo!, Hotmail, Lycos or just about
any "free" mail service. Also, if you really want to get scared, look at
the MS license for XP and the terms you agree to everytime you download
any updates, patches or "hot fixes".
>
>Can Spam, Definitions. (Section 3, A)
> "(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; ..."
Again, the notice that you are agreeing to another referenced
document unfortunately does qualify here.
>
>Point 2) Give you the option to opt out.
This one we are in full agreement upon.
>
>Section 3) a, 5,b,ii (something like that - it's hard to follow)
> "(ii) clear and conspicuous notice of the opportunity under
>paragraph (3) to decline to receive further commercial electronic mail
>messages from the sender; ..."
>
Again, there is an unfortunate exception provided by Sec 3.17
which allows "Transactional or relationship message-" and in particular
clause A.iii.I specifically allows "notification concerning a change in
the terms or features of". This has specifically been taken by courts to
allow the sending of email notifying you of a change in price(s) - i.e.
"advertised specials" have a (down-right lousy) exception here. This means
if you bought something from somebody and gave them an email address, they
can send you "notice" of "special" pricing - i.e. "sales". This takes pretty
much all the teeth out of any case where you did do business with a company.
>Point 3) - Physical contact information
>
>Same section as above.
> "(iii) a valid physical postal address of the sender."
This one I had missed - This is a good one! Too bad CAN-SPAM made
most civil actions unavailable (just try to get the California Attorney
General to act - this week I received a "follow-up" for a complaint I filed
in October 2004 asking if the matter had been resolved yet or if I still
believed that I needed assistance). It is unfortunate that both P.O. Boxes
and "Agents for service" of a holding company would clearly qualify under
this clause (i.e. a "physical postal address" != ""physical address").
Still, an excellent point to be remembered.
>
>Point 4) - privacy statement.
>
>You are correct that it wasn't passed as part of a law - but it's
>considered part of spamming. "I'm not telling you what I'm going to do
>with it, and we're going to sell it to anyone and everyone"
>
>In some ways, it comes under part B of affirmative consent -
> " (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."
>
>A 'clear and conspicuous notice', to me, would be a privacy statement.
>
Here some states are better than others. In California the right
to privacy is part of our (far over-bloated) state constitution and there
are quite a few laws in place - again, though, just try to get them enforced;
Generally, you do not have the ability to bring civil action (though I have
gotten a few settlements for flagrant violations over the years).
Unfortunately what the courts have rules is "clear and conspicuous
notice" is quite different than what you or I would like it to be - Again,
just look at the sign-up procedure for a Yahoo! account to see what is clearly
acceptable (they are in California, and undoubtably are acting within the
bounds of what may be the strictest requirements in the US - it is downright
scary what you agree to, especially if you do not read all the legalese on the
many pages of agreements referenced on the "simple" sign up page). Ebay and
Paypal are other "scary" examples (in particular the ability of them to
change many terms, and the requirement that you must constantly check to see
if changes have occurred).
Still, the physical address notice is something I had missed before.
Another point not directly mentioned in CAN-SPAM is that the FDA can enforce
any part of the law which would deal with a product or service which under
any other circumstance would come under their jurisdiction - This is actually
very good, because I have found they are very interested in really enforcing
the rules against pill-pushers (though they will generally find a stricter law
to charge them with, they *really* will investigate spam complaints); The FTC
just collects complaints and puts out a press release every couple of years
(the total number of prosecutions under CAN-SPAM Act can, I think, still be
counted on the fingers of one hand).
Thanks a lot,
Paul Shupak
[EMAIL PROTECTED]
P.S. All of this is, of course, subject to the disclaimer that I am not a
lawyer; I have spent far too much time in courts and legal libraries and
have successfully sued Fortune 500 companies a few times (and settled for
non-trivial amounts a few others). As I believe I have already said, it is
rarely worth the effort to sue anybody (but the satisfaction can be its own
reward).
