Email Marketing
A look at the latest developments in the CAN-SPAM Act and what it means for your business
May 17, 2004
By Holly Berkley

At first glance, it looks like there may actually be an end to all those Viagra, weight loss and sexual enhancement ads that appear in your inbox each morning. Just 4 months after the new CAN-SPAM law was enacted, the first spammers were arrested. The four Michigan men are accused of operating an Internet scam involving the sale of fraudulent weight-loss products, sexual aids, and herbal supplements through millions of unsolicited e-mails.

According to CIO Today, the men are accused of a number of illegal activities, including spoofing return e-mail addresses by using open proxy servers owned by a variety of major companies and organizations.
"The violations of the spam law carry a punishment of up to five years in prison. But the four could also get 20-year sentences for mail fraud based on the sale of bogus products through e-mail", according to Jason Lopez of NewsFactor Network in his April 29th article for CIO Today.

However, it is doubtful the men would actually go to prison for the violation of the anti-spam law. Not because they are innocent, but because there are so many grey areas in the way the current CAN-SPAM law is written. I'm fairly confident any lawyer could get them off, by addressing any number of loopholes.

CAN-SPAM Grey Areas & Loopholes

Since the law was enacted, marketers as well as consumers have many questions about how to comply with the new law. As a result, the FTC says it will spend the next 18 months or so, further defining the law. One of the main issues that has legitimate online marketers questioning the new law, is the section outlawing all commercial email, which is then defined as any email sent by a web site with a commercial purpose. This piece of the law could clearly hurt legitimate B2B online communications. The following are some other areas of the new law that deserve a closer look:

• 1. According to CAN-SPAM, all commercial emails must contain a physical address.
  In theory this sounds great. But how can you verify if the address is actually real? In addition, many spammers who are trying to appear CAN-SPAM compliant resort to tricks such as posting their company address and contact information within a graphic. They can later easily change the address graphic at anytime, by simply uploading a new graphic to the server. (This also prevents Network Administrators from filtering specific emails based on contact information)
  
  
• 2. According to CAN-SPAM, all commercial all emails must provide newsworthy content.
  Again, that sounds like a legitimate request at first glance. But as a result, spammers are literally providing 1 line of "newsworthy" content, followed by several ads.

What about the Do Not Email registry?

This would function similar to the Do Not Call list, where advertisers would be financially penalized for emailing anyone on the list. Again, another great idea in theory, but upon closer look there are some significant risks.

• 1. There are many ways spammers could get a hold of an online database of people who registered with the Do Not Registry list. And once compromised, it is questionable whether or not the list could ever be re-secured.
  
  
• 2. One of the proposals includes a domain-wide Do Not Email option. This option involves domain owners submitting their domain name to have all associated emails excluded from spam. The problem? This option could potentially kill legitimate B2B email communications, as the current Do Not Email proposal contains no exemptions for preexisting business relationships.

Even if CAN-SPAM is better defined, can it even be enforced?
Since the CAN-SPAM law was enacted, numerous studies have shown no reduction in spam. In fact almost 58% of our inboxes is still spam.

California Attorney General Bill Lockyer was honest about his lack of resources to enforce the new email law. According to Ben Isaacson's February Clickz.com report on the Spam & the Law conference, Lockyer stressed the importance of getting the industry's support to help enforce the law. "He cited an online form that can be used to report violations… and went so far as to give out his personal email address to anyone (at the conference) who would provide assistance"

Offshore Spamming

So if we all pitch in, and help identify spammers, does this mean the end of spam is near? Not likely.

Many spammers are simply moving their operations offshore. Which can be as simple as setting us a server in countries such as Taiwan, China, India or Russia, making it almost impossible for US law enforcement to prosecute violators without the help of officials in that country. Some Experts say the only way to stop anti-spamming is to begin charging for emails, an issue that is a highly sensitive one to all internet users, including myself.

The end of spam starts with you

I do have faith that the CAN-SPAM law will eventually help control spam. I like to see the law enacted in January as a "rough draft" and open to feedback and ideas from marketers as well as consumers.

I do think that a reduction in spam must start close to home through our own email marketing practices. I can't stress enough the importance of not buying or renting email lists. No matter what an email marketing company will tell you, NO ONE opts in to have their email address sold. Buying or renting an email list is spam, period.

If you are having trouble growing your current email list try offering a bigger incentive in your next email newsletter or announcement to spark viral marketing. For example a 2 for 1 offer, catchy contest or a significant discount will encourage your existing subscribers to forward your message to co-workers, friends or family, thereby getting your message out to a larger audience (without spamming) and potentially increasing your email list (without buying one).

We are a long way from the end of spam. However the CAN-SPAM Act is better than sitting back and doing nothing, and a positive step in the right direction.

Holly Berkley is the author of "Limited-Budget Online Marketing for Small Business" and owner of San Diego based Web site design and Marketing Company, Berkley Web Strategies