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MIT Info Group, January 19, 2005 Page 1
The CAN-SPAM Act and what it means for MIT communicators
MIT Info Group, January 19, 2005
Marsha SandersSenior Communications Officer
Monica LeeDirector, Publishing Services Bureau
MIT Info Group, January 19, 2005 Page 2
What is the CAN-SPAM Act?
Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003
It does more than the name implies
First law with national standards for sending commercial emails
and email newsletters; this is the first law to go beyond
spammers
Effective January 1, 2004 under Federal Trade Commission (FTC) enforcement; pre-empts state spam laws
MIT Info Group, January 19, 2005 Page 3
But we are a non-profit institution!
Under tax law, we are not commercial; underIntellectual Property law, we can be commercial
Universities sometimes engage in commercial email campaigns without an education-specific purpose
Although the legislation doesn’t apply specifically to non-profits, we recommend:Adhere to well-defined best email practices!
MIT Info Group, January 19, 2005 Page 4
Examples of commercial emails Emails promoting sporting or theatrical events
Emails promoting products of the institution Credit cards, embossed clothing, publications (other
than educational publications)
Email newsletters to alumni promoting products or services (other than educational trips)
Are you already working with Jim Morgan’s office (MIT Controller)?
MIT Info Group, January 19, 2005 Page 5
Exempt Commercial Emails
Transactional or relationship messages Facilitate, complete or confirm a transaction Provide warranty, product recall, safety or security
information Notify concerning a subscription, membership, account, or
other relationship Provide HR or benefits information to employees Deliver solicited goods or services
Emails serving the Institute’s purpose of advancing education (example: charitable donations, prospective student recruitment, conferences)
MIT Info Group, January 19, 2005 Page 6
Commercial Email – Recipients
CAN-SPAM protects all spam recipients: consumers, businesses and organizations
It applies to both a mass email campaign and email sent to one specific email address; does not apply to email sent to a Web site
Covers email addresses specific to a wireless device Prior express consent required (must opt-in) In effect October 2004, enforced by the FCC; FCC
will develop database of wireless numbers)
MIT Info Group, January 19, 2005 Page 7
Hybrid Messages
Subject to CAN-SPAM if “the average consumer would reasonably conclude that the email is an advertisement”
Key components Subject line Beginning of message
Subject to FTC’s final definition of a commercial email – released last week
MIT Info Group, January 19, 2005 Page 8
FTC Definition of Commercial EmailReleased 1/12/05; effective 3/28/05
MIT Info Group, January 19, 2005 Page 9
FTC Commercial Definition: Hybrid
For emails containing both commercial and “transactional or relationship” content, the primary purpose will be considered commercial if either: A recipient reasonably interpreting the subject line
of the email would likely conclude that the message contains commercial content, or
The email’s “transactional or relationship” content does not appear in whole or substantial part at the beginning of the body of the message
MIT Info Group, January 19, 2005 Page 10
FTC Commercial Definition: Hybrid For emails containing both commercial and content
that is neither transactional nor relationship , the primary purpose will be considered commercial if either: A recipient reasonably interpreting the subject line
of the email would likely conclude that the message contains commercial content, or
A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the email is commercial (relevant factors include proportion of commercial/non-commercial content, graphics, type size and style)
MIT Info Group, January 19, 2005 Page 11
International Emails: Europe
European emails already subject to more severe rules than those established by CAN-SPAM (commercial and non-commercial)
The European Union (E.U.) must protect their residents against unsolicited direct marketing emails as of November 1, 2003
No commercial email can be sent without the recipient’s prior consent unless there is an existing transaction or sale
MIT Info Group, January 19, 2005 Page 12
CAN-SPAM Email Checklist
An honest, non-deceptive, subject line and message text consistent with the subject line
Opt-out mechanism (simple “unsubscribe” or URL to a web site to opt-out)
Working return email address (the “From:” line should not be ambiguous)
Valid physical postal address of the sender(no post office boxes) in signature block
MIT Info Group, January 19, 2005 Page 13
Checklist: Subject Line
A clear and conspicuous identification that the email is an advertisement or solicitation (no requirement to include any particular language or labeling such as “advertisement”)
MIT Info Group, January 19, 2005 Page 14
Checklist: Opt-Out
A working return email address or automated means to opt-out that must function for 30 days after the email was sent
Opt-out request must be honored within 10 days
The sender may not disclose the recipient’s email address to third parties
Opt-out process should be specific to the unit of the Institute that sent the email; do not bind the entire Institute from sending emails to this person
MIT Info Group, January 19, 2005 Page 15
Mail lists: IS&T’s Mailman
Web-based list management system
Spam filtering privacy option: owners control what gets sent to the list
Prevent unwanted posts
Using an outside vendor for mass email campaigns must follow the same ethical standards that MIT uses (lists may not be sold, for example)
MIT Info Group, January 19, 2005 Page 16
What are other schools doing?
Penn State: Marketing Privacy communication
U of Chicago: Mass and Bulk Mailings policy
Stanford University:Email on anti-spamlaws to the community
MIT Info Group, January 19, 2005 Page 17
Sources
Amy Worlton, Wiley Rein & Fielding, LLP, December 7, 2004 audio seminar, sponsored by ACUTA
CAN-SPAM Act http://www.spamlaws.com/federal http://www.ftc.gov/bcp/conline/pubs/buspubs/
canspam.htm
FTC definition of commercial emailhttp://www.ftc.gov/opa/2005/01/primarypurp.htm
MIT Info Group, January 19, 2005 Page 18
Contacts
Marsha SandersSenior Communications [email protected]
Monica LeeDirector, Publishing Services [email protected]
Ann HammerslaSenior Counsel for Intellectual [email protected]