Spam Law Test

The Fog of CAN-SPAM

Our experience with several of the Internet businesses that continued to send us e-mail after we notified them that we wanted to unsubscribe illustrate the sometimes confusing aspects of CAN-SPAM. For example, we had no trouble opting out of the newsletter we had requested at the travel site SideStep--but then two weeks later we began to receive a second newsletter that we had never signed up for.

SideStep spokesperson Kristen Evans said the company had erred in sending the second newsletter, owing to a glitch introduced during a site upgrade. Recently, SideStep made unsubscribing from its mailings easier, with a new Web page you reach when you click the opt-out link in a message.

David Sorkin, a professor at the Center for Information Technology and Privacy Law in Chicago's John Marshall Law School, says that it's unclear whether SideStep violated CAN-SPAM by sending us the second newsletter after we unsubscribed from the first one. "There are still many aspects of CAN-SPAM that are very much gray," Sorkin says.

Crying Uncle

Meanwhile, our experience with FreeLotto.com was typical for the sites where signing up for e-mail produced scores of messages from third parties. To be eligible for the daily prize drawings held at FreeLotto.com, we had to agree to receive marketing e-mail from FreeLotto's parent company, PlasmaNet, and other marketing partners. But despite our repeated use of opt-out links in messages from FreeLotto, PlasmaNet, and their partners, we continued to get mail four weeks after unsubscribing.

When we contacted PlasmaNet, a spokesperson told us that we hadn't opted out correctly. To unsubscribe from all PlasmaNet-related e-mail, the spokesperson said, we should visit PlasmaNet's Web site and update our marketing preferences there. We followed these instructions; but at press time some two weeks later, the account we used for PlasmaNet was still receiving about 12 e-mail messages a day, down from a peak of 60 a day.

Address Unknown

Every firm that didn't include a physical postal address in its e-mail messages said it considered itself exempt from CAN-SPAM because of a provision in the law that has become the subject of debate.

For example, Tribune Interactive marketing services manager Rebecca Prazak says the company's weekly Metromix entertainment newsletter is exempt from the postal-address requirement because it is editorial, not commercial e-mail--even though it does include ads. But Anne Mitchell, president of the Institute for Spam and Internet Public Policy, an Internet public policy advisory group, says that a newsletter with ads that generate income could be construed as commercial e-mail and for this reason should include the snail-mail address. (Full disclosure: PC World's newsletters, which contain advertising, include both an opt-out link and a postal address.)

Disagreements over what types of e-mail CAN-SPAM governs aren't uncommon, say lawyers at the Federal Trade Commission, one of the agencies responsible for enforcing the law. Many conflicts stem from a provision that exempts "transactional" or "relationship" e-mail--for example, messages that confirm online purchases, recall products, or relay information of interest to members of an organization--from most of the law's terms.

The CAN-SPAM Act explicitly permits transactional messages to include advertising.