As privacy industry leaders have predicted for the last several years, government regulation for commercial electronic mail messages (CEMMs) is here. The new federal law entitled Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, commonly referred to as CAN-SPAM, became effective the first of this year. This act pre-empts all State laws regarding commercial email, though State laws covering falsity or deception still apply alongside similar provisions in the Act.

You need to be aware that this Act is a result of consumers' demand for government regulation and these government-mandated privacy regulations are changing the way the world does business. Though there is no way to close the Pandora's Box of spam, responsible businesses can take the lead to create an attitude of service to their customers, employees and consumers and turn it into a market advantage.

What You Need To Know About CAN-SPAM
CAN-SPAM applies to a CEMM the primary purpose of which is “commercial advertisement or promotion”. Notice that there is no reference to “unsolicited”, so even a CEMM that a recipient has consented to receive is included in this definition, even where there is a previously existing business relationship such as with customers and suppliers.

Specifically excluded from the CEMM definition are “transactional or relationship” messages which are those whose “primary purpose” is to either: facilitate a transaction with the sender; provide a warranty or other information regarding a purchased product; communicate a change or status information regarding a subscription, membership or account involving an ongoing purchase; communicate with employees regarding their status or benefits; or provide status on deliveries of purchased goods. There is an apparent gray area surrounding e-newsletters containing advertising.

What does this mean in English to you? Here are the rules that pertain to your business.

CEMMs must contain:

1. the sender's valid postal address
2. clear notice that the message is an ad or solicitation
3. notice of how to opt out
4. mechanism to opt out (which can be a menu of options, as long as one of them is to not receive any further such CEMMs)

Prohibited activities with respect to sending CEMMs are:

1. The sender using false or misleading header information (i.e. the originating address and “from” information) or subject headings
2. When a recipient has opted out, the sender sending another CEMM after 10 days of receiving the opt-out notice
3. When a recipient has opted out, the ESP or list merchant (who knows or ought to know of the opt out) sending another CEMM to the opted-out recipient
4. When a recipient has opted out, the sender, or anyone who knows or ought to know of the opt-out, disclosing the opted-out recipient's email address

The absolute no-nos are:

1. sending unlawful CEMMs to harvested email addresses
2. sending unlawful CEMMs to electronically generated email addresses (“dictionary attacks”)
3. sending unlawful CEMMs from a computer which the sender is not authorized to access
4. registering for multiple email accounts for the purpose of transmitting unlawful CEMMs

You also need to know that the Federal Trade Commission (FTC) has sent four reports to Congress required by the CAN-SPAM Act. Included are reports on: 1) establishing a nationwide Do Not E-Mail Registry; 2) establishing a system for rewarding those who supply information about CAN-SPAM violations; 3) setting forth a plan for requiring commercial e-mail to be identifiable from its subject line; and 4) the effectiveness of CAN-SPAM.

Other privacy legislation is not far behind. I foresee that if real estate professionals continue to ignore the importance of these issues of “privacy” and “information security”, specific legal theories will be created for consumer claims when their information is acquired or distributed indiscriminately. If consumers are annoyed by the repetitive use of their data to direct-market them, as evidenced by the outcry against spam and telemarketing, they will likely complain more loudly to government regulators and demand strict regulations, thus potentially limiting access to the life blood of successful modern commerce - the free flow of data.

Remember, privacy is a simple as ABC:

A – Always do your best to protect your client's information…

B – Be sure to tell them what you are doing with it…

and

C – Convey this clearly and conspicuously

Please feel free to email me with any questions or issues you would like to see addressed in this column. I would appreciate hearing from you and addressing any issue that is on your mind. Email me at Darity@privacygurus.com