e-mail use in an organization

E-mail Use E-mail Use in anin an

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E-mail Use E-mail Use in anin an

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DisclaimerDisclaimer

• This presentation and its content are the This presentation and its content are the views of the presenter and not the views of views of the presenter and not the views of Ice Miller.Ice Miller.

• These materials do not constitute specific These materials do not constitute specific legal advice and may not address all aspects legal advice and may not address all aspects of a legal development relevant to the of a legal development relevant to the audience member’s circumstances. audience member’s circumstances.

2%2%Percent of E-mail in Percent of E-mail in Compliance with the Compliance with the Various State Laws Various State Laws

in 2003in 2003

Source: FTC, Feb. ‘04

66%66%Percent of Spam that Percent of Spam that

is Fraudulentis Fraudulent

Source: FTC, Feb. ‘04

E-mail Laws and RegulationsE-mail Laws and RegulationsE-mail Laws and RegulationsE-mail Laws and Regulations

• FederalFederal – CAN-SPAM (Effective Jan. 1, 2004) – CAN-SPAM (Effective Jan. 1, 2004)

• StateState – 37 States have passed laws regulating – 37 States have passed laws regulating unsolicited e-mailunsolicited e-mail

• InternationalInternational – Numerous foreign countries have – Numerous foreign countries have enacted laws enacted laws

CAN-SPAMCAN-SPAMCAN-SPAMCAN-SPAM

• CAN-SPAM – Federal Act CAN-SPAM – Federal Act

• Applies in all states and U.S. TerritoriesApplies in all states and U.S. Territories

• Enacted to curb the quantity of unsolicited Enacted to curb the quantity of unsolicited e-maile-mail

• FTC rulemaking continuesFTC rulemaking continues


• OverviewOverview– Requires e-mail to include specific information Requires e-mail to include specific information

and mechanismsand mechanisms

– Prohibits sending e-mail to those who opted out Prohibits sending e-mail to those who opted out

– Fraud and deception in transmission – Fraud and deception in transmission – prohibitedprohibited

– Deceptive subject line – prohibitedDeceptive subject line – prohibited

– Hiding origin of e-mail, routing through Hiding origin of e-mail, routing through unauthorized computer – prohibitedunauthorized computer – prohibited


• CAN-SPAM CoversCAN-SPAM Covers: : – ““Commercial Electronic Mail Messages”Commercial Electronic Mail Messages”

– ““Senders”Senders”

– No straight-forward exceptions for No straight-forward exceptions for prior business prior business relationshipsrelationships

– No exemptions for associations, not-for-profits, etc.No exemptions for associations, not-for-profits, etc.


• DEFINITION – DEFINITION –

Commercial Electronic Mail Message:Commercial Electronic Mail Message:– The term ‘‘commercial electronic mail message’’ means any The term ‘‘commercial electronic mail message’’ means any

electronic mail message the primary purpose of which is theelectronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial advertisement or promotion of a commercial product or servicecommercial product or service (including content on an (including content on an Internet website operated for a commercial purpose).Internet website operated for a commercial purpose).


• DEFINITION – Sender:DEFINITION – Sender:– (A) (A) IN GENERAL.—Except as provided in subparagraph (B), the IN GENERAL.—Except as provided in subparagraph (B), the

term ‘‘sender’’, when used with respect to a commercial electronic term ‘‘sender’’, when used with respect to a commercial electronic mail message, means amail message, means a person who initiatesperson who initiates such a such a

messagemessage

– andand whose product, service, or Internet web site whose product, service, or Internet web site is advertised or promoted by the messageis advertised or promoted by the message..


• DEFINITION – Sender (continued):DEFINITION – Sender (continued):– (B) SEPARATE LINES OF BUSINESS OR (B) SEPARATE LINES OF BUSINESS OR

DIVISIONS.—DIVISIONS.—If an entity operates through separate lines of If an entity operates through separate lines of business or divisions and holds itself out to the recipient throughout business or divisions and holds itself out to the recipient throughout the message as that particular line of business or division rather the message as that particular line of business or division rather than as the entity of which such line of business or division is a than as the entity of which such line of business or division is a part,part, then the line of business or the division shall then the line of business or the division shall be treated as the senderbe treated as the sender of such message for purposes of such message for purposes of this Act.of this Act.


• DEFINITION – DEFINITION –

Initiate:Initiate:– The term ‘‘initiate’’, when used with respect to a The term ‘‘initiate’’, when used with respect to a

commercial electronic mail message, means to commercial electronic mail message, means to originateoriginate or transmit such message or to or transmit such message or to procure the origination procure the origination or transmission ofor transmission of such message, such message,

but but shall not include actions that constitute routine shall not include actions that constitute routine conveyanceconveyance of such message. For purposes of this of such message. For purposes of this paragraph, paragraph, more than one personmore than one person may be considered to may be considered to have initiated a message.have initiated a message.

CAN-SPAMCAN-SPAM

• Messages exempt or not covered Messages exempt or not covered by certain parts of Actby certain parts of Act– Transactional or Relationship MessagesTransactional or Relationship Messages

• (A) IN GENERAL.—The term ‘‘transactional or relationship (A) IN GENERAL.—The term ‘‘transactional or relationship message’’ means an electronic mail message the primary message’’ means an electronic mail message the primary purpose of which is—purpose of which is—

– (i) to facilitate, complete, or confirm a commercial (i) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to transaction that the recipient has previously agreed to enter into with the sender;enter into with the sender;


• Transactional or Relationship Transactional or Relationship Messages (continued)Messages (continued)

• (A) IN GENERAL.—The term ‘‘transactional or relationship (A) IN GENERAL.—The term ‘‘transactional or relationship message’’ means an electronic mail message the primary message’’ means an electronic mail message the primary purpose of which is—purpose of which is—

– (ii) to provide (ii) to provide warrantywarranty information, product information, product recallrecall information, or information, or safety or securitysafety or security information with information with respect to a respect to a commercial product or service used or commercial product or service used or purchasedpurchased by the recipient; by the recipient;



• (A) IN GENERAL.—The term ‘‘transactional or relationship (A) IN GENERAL.—The term ‘‘transactional or relationship message’’ means an electronic mail message the primary message’’ means an electronic mail message the primary purpose of which is — (purpose of which is — (iii) to provide —iii) to provide —

(I) notification concerning a change in the terms or features of; (I) notification concerning a change in the terms or features of;

(II) notification of a change in the recipient’s standing or status (II) notification of a change in the recipient’s standing or status with respect to; orwith respect to; or

(III) at regular periodic intervals, account balance information or (III) at regular periodic intervals, account balance information or other type of account statement with respect to, other type of account statement with respect to,

a subscription, membership, account, loan, or comparable a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services purchase or use by the recipient of products or services offered by the sender;offered by the sender;



• (A) IN GENERAL.—The term ‘‘transactional or (A) IN GENERAL.—The term ‘‘transactional or relationship message’’ means an electronic mail relationship message’’ means an electronic mail message the primary purpose of which is—message the primary purpose of which is—

– (iv) to provide information directly related to an (iv) to provide information directly related to an employment relationship or related benefit planemployment relationship or related benefit plan in which in which the recipient is currently involved, participating, or the recipient is currently involved, participating, or enrolled; orenrolled; or



• (A) IN GENERAL.—The term ‘‘transactional or (A) IN GENERAL.—The term ‘‘transactional or relationship message’’ means an electronic mail relationship message’’ means an electronic mail message the primary purpose of which is—message the primary purpose of which is—

– (v) to deliver goods or services, including product (v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the receive under the terms of a transaction that the recipient has previously agreed to enter into with the recipient has previously agreed to enter into with the sender.sender.


• Transactional or Relationship Transactional or Relationship Messages (continued)Messages (continued)– Potential Modification of DefinitionPotential Modification of Definition

• The [FTC]…may modify the definition…to expand The [FTC]…may modify the definition…to expand or contract the categories of messages that are or contract the categories of messages that are treated as transactional or relationship messages treated as transactional or relationship messages for purposes of this Act to the extent…necessary for purposes of this Act to the extent…necessary to accommodate changes in electronic mail to accommodate changes in electronic mail technology or practices and accomplish the technology or practices and accomplish the purposes of this Act.purposes of this Act.


• Requirements for Commercial E-mail:Requirements for Commercial E-mail:– All Commercial e-mail Must Contain a Valid All Commercial e-mail Must Contain a Valid Opt-out Opt-out

MechanismMechanism

– Opt-out Requests Must Be Honored Within Opt-out Requests Must Be Honored Within 10 10 Business DaysBusiness Days

– e-mail Must Provide a Clear e-mail Must Provide a Clear NoticeNotice that it is an that it is an AdvertisementAdvertisement

– e-mail Must Provide an e-mail Must Provide an Operative Return AddressOperative Return Address


• Requirements (Continued):Requirements (Continued):– Senders Must Avoid Senders Must Avoid False, Deceptive, or MisleadingFalse, Deceptive, or Misleading e- e-

mail mail Transmission InfoTransmission Info or or Subject LinesSubject Lines

– Sender Must Include a Valid Sender Must Include a Valid Physical Postal AddressPhysical Postal Address

– Senders Must Label Sexually-Oriented MessagesSenders Must Label Sexually-Oriented Messages


• Requirements: Requirements: Opt-out MechanismOpt-out MechanismCAN-SPAM is an opt-out law. CAN-SPAM is an opt-out law.

– Permits an initial e-mail as long as the recipient is given an Permits an initial e-mail as long as the recipient is given an opportunity to opt-out of future communications and other opportunity to opt-out of future communications and other requirements are met. requirements are met.

– Opt-out opportunity notice must be provided clearly and Opt-out opportunity notice must be provided clearly and conspicuously. conspicuously.

– Provide a Provide a genericgeneric opt opt--out from all communications or a more out from all communications or a more specific menuspecific menu of options - to opt-out of certain types (as long as of options - to opt-out of certain types (as long as also also provide the means to opt-out of provide the means to opt-out of all all communications).communications).


• Requirements: Requirements: e-mail Must Provide a Clear e-mail Must Provide a Clear NoticeNotice that it is an Advertisement that it is an Advertisement– No recommendation is made for the specific language that is to be No recommendation is made for the specific language that is to be

used or how it is to be positioned in the e-mail. used or how it is to be positioned in the e-mail.

– FTC’s “DOT-COM Disclosures:” FTC’s “DOT-COM Disclosures:” • The The overall net impressionoverall net impression of the ad of the ad

• Adopt the perspective of a Adopt the perspective of a reasonable consumerreasonable consumer

– Congress prohibits the FTC from Congress prohibits the FTC from requiring requiring the inclusion of specific the inclusion of specific indicators in the subject line (except for adult content); however, indicators in the subject line (except for adult content); however, the FTC is free to suggest such inclusion in a report it is to issue the FTC is free to suggest such inclusion in a report it is to issue regarding its recommendations.regarding its recommendations.


• Requirements: Requirements: e-mail Must Provide an e-mail Must Provide an Operative Return AddressOperative Return Address– A valid return address (or similar) must be provided for A valid return address (or similar) must be provided for

at least 30 days from the transmission of the message at least 30 days from the transmission of the message (leniency for temporary outages)(leniency for temporary outages)

– Goal - to facilitate opt-outGoal - to facilitate opt-out

– To permit enforcement against fraudulent users of To permit enforcement against fraudulent users of ‘temporary’ e-mail address spammers‘temporary’ e-mail address spammers


• Requirements:Requirements:• Sender Must Include a Valid Sender Must Include a Valid Physical Postal Physical Postal

AddressAddress

– It is unclear whether a post-office box or similar It is unclear whether a post-office box or similar postal address will satisfy the requirements of postal address will satisfy the requirements of the Actthe Act

State LawsState LawsState LawsState Laws

• 37 States have passed laws regulating 37 States have passed laws regulating unsolicited e-mailunsolicited e-mail

• California probably the most stringent overallCalifornia probably the most stringent overall– Opt-in requirementOpt-in requirement

– Illegal to send to a recipient unless s/he has Illegal to send to a recipient unless s/he has opted in to receiving the e-mailopted in to receiving the e-mail

State LawsState LawsState LawsState Laws

• Compliance – which states have jurisdiction: Compliance – which states have jurisdiction: – where does the recipient live? where does the recipient live?

– other contacts with a given state?other contacts with a given state?

• Difficult to know with which law(s) to complyDifficult to know with which law(s) to comply

• Federal CAN-SPAM Act preempts state lawsFederal CAN-SPAM Act preempts state laws

• BUT BUT only partially preemptedonly partially preempted

California California S.B. 186 (2003)S.B. 186 (2003)California California S.B. 186 (2003)S.B. 186 (2003)• "Unsolicited commercial e-mail advertisement" means a commercial e-mail

advertisement sent to a recipient who meets both of the following criteria: – (1) The recipient has not provided direct consent to receive advertisements from

the advertiser. – (2) The recipient does not have a preexisting or current business

relationship, as defined in subdivision (l), with the advertiser promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit.

• Notwithstanding any other provision of law, a person or entity may not do any of the following:– (a) Initiate or advertise in an unsolicited commercial e-mail

advertisement from California or advertise in an unsolicited commercial e-mail advertisement sent from California.

– (b) Initiate or advertise in an unsolicited commercial e-mail advertisement to a California electronic mail address, or advertise in an unsolicited commercial e-mail advertisement sent to a California electronic mail address.

• California: an OPT-IN state with a current business relationship exception

Indiana IC 24-5-22-8 Indiana IC 24-5-22-8 Indiana IC 24-5-22-8 Indiana IC 24-5-22-8

• Indiana – an opt-out state with a business relationship exception• A person may not do any of the following:

– (1) Send unsolicited commercial electronic mail and fail to use "ADV:" as the initial four (4) characters in the subject line of the electronic mail. This subdivision does not apply if any of the following apply: (A) The sender … has a current business relationship with the recipient of the electronic mail. (B) … is an organization using the electronic mail to communicate with its members. (C) … is an organization using the electronic mail to communicate exclusively with the organization's employees or contractors, or both.

– (2) … fail to use "ADV:ADLT" as the first eight (8) characters in the subject line of the electronic mail if the unsolicited commercial electronic mail is any of the following: (A) … contains a solicitation for the sale or lease of services or tangible or intangible personal or real property that may not be purchased, leased, or possessed by a minor under Indiana law. (B) … contains a solicitation for an extension of credit. (C) … contains matter that is harmful to minors under Indiana law.

Indiana IC 24-5-22-8Indiana IC 24-5-22-8 Indiana IC 24-5-22-8Indiana IC 24-5-22-8

• (Continued) (Continued) A person may not do any of the following: A person may not do any of the following: – (3) Send … and fail to provide a (3) Send … and fail to provide a meansmeans for the for the

recipient easily and at no cost to the recipient recipient easily and at no cost to the recipient to to remove the recipient's name from the sender's remove the recipient's name from the sender's electronic mail address listselectronic mail address lists. .

– (4) Send … to a recipient (4) Send … to a recipient who has asked the who has asked the sender to removesender to remove the recipient's electronic mail the recipient's electronic mail address from the sender's electronic mail address address from the sender's electronic mail address lists.lists.

Indiana IC 24-5-22-8 Indiana IC 24-5-22-8 Indiana IC 24-5-22-8 Indiana IC 24-5-22-8

• (Continued) (Continued) A person may not do any of the following: A person may not do any of the following: – (5) Provide to a third person the electronic mail (5) Provide to a third person the electronic mail

address of a recipient who has asked the sender to address of a recipient who has asked the sender to remove the recipient's electronic mail address from remove the recipient's electronic mail address from the sender's electronic mail address lists. This the sender's electronic mail address lists. This subdivision applies to a third person who is a part of subdivision applies to a third person who is a part of the sender's business organization. This subdivision the sender's business organization. This subdivision does not prohibit providing a recipient's electronic does not prohibit providing a recipient's electronic mail address to a third person for the sole purpose of mail address to a third person for the sole purpose of inclusion of the electronic mail address on a do-not-inclusion of the electronic mail address on a do-not-mail list.mail list.

State Law – PreemptionState Law – PreemptionState Law – PreemptionState Law – Preemption

• Federal CAN-SPAM Act preempts state laws Federal CAN-SPAM Act preempts state laws unlessunless::– The state law is directed to fraudulent or deceptive The state law is directed to fraudulent or deceptive

practicespractices

– The state law is applicable more broadly than just e-mailThe state law is applicable more broadly than just e-mail

• State laws should continue to be considered State laws should continue to be considered

• States – could draft new ‘broadly applicable’ laws States – could draft new ‘broadly applicable’ laws to avoid direct preemptionto avoid direct preemption

CAN-SPAM – Who Can Sue You?CAN-SPAM – Who Can Sue You?CAN-SPAM – Who Can Sue You?CAN-SPAM – Who Can Sue You?

• U.S. Attorneys – Dept. of JusticeU.S. Attorneys – Dept. of Justice

• Federal Agencies:Federal Agencies:– FTCFTC

– FDICFDIC

– Etc.Etc.

• State Attorneys GeneralState Attorneys General

• Internet Service Providers (ISPs)Internet Service Providers (ISPs)


• Individuals Individuals cannotcannot sue sue

• Individuals may continue to bring suit under Individuals may continue to bring suit under non-preempted State lawsnon-preempted State laws

• Plaintiff’s attorneys could seek class actionPlaintiff’s attorneys could seek class action

• It remains to be determined how courts It remains to be determined how courts interpret CAN-SPAM’s preemption languageinterpret CAN-SPAM’s preemption language


• Criminal ViolationsCriminal Violations– Hiding e-mail Origin Using Other Computers Hiding e-mail Origin Using Other Computers

(Hacking and Relaying)(Hacking and Relaying)

– False or Misleading e-mail Header InformationFalse or Misleading e-mail Header Information

– Deception in Registration of e-mail and Domain Deception in Registration of e-mail and Domain Names, and Ownership of IP AddressesNames, and Ownership of IP Addresses


• Criminal Violations - Details– Hiding e-mail Origin Using Other Computers (Hacking and Relaying) –

Accessing, without authorization, a computer to initiate the transmission of multiple e-mails is prohibited. Similarly, using a computer to relay or retransmit multiple messages with the intent to hide the origin of the message is prohibited. Spammers sometimes use different computers, with or without permission, to hide the true origin of an e-mail, thus evading filters and other blocking techniques used by ISP’s.

– False or Misleading e-mail Header Information – This is another tactic used by spammers to disguise their “sending” identity. The information is falsified in the “header” of their e-mail, which is typically the only portion of the e-mail that is seen by the receiving mail server. Spammers constantly change and falsify this information to evade detection, confuse spam filters, and continue sending spam. The Act prohibits initiation of multiple e-mails with materially falsified header information.

– Deception in Registration of e-mail and Domain Names, and Ownership of IP Addresses - The Act prohibits initiating multiple e-mails from an account where the initiator has registered five or more e-mail accounts or two or more domain names using information that materially falsifies the registrant's true identity. The Act further prohibits initiating multiple e-mails from an IP address when the initiator has falsely represented he is the registrant of the address.


• Civil ViolationsCivil Violations– Failure to include in an e-mail all required Failure to include in an e-mail all required

information and opt-out mechanismsinformation and opt-out mechanisms

– Failure to honor opt-out requestsFailure to honor opt-out requests– Including False, Deceptive, or Misleading e-mail Including False, Deceptive, or Misleading e-mail

Transmission Info or Subject LinesTransmission Info or Subject Lines


• Remedies for ViolationsRemedies for Violations– A state attorney general can pursue money damages, A state attorney general can pursue money damages,

injunctive relief to stop further violations of the Act, or injunctive relief to stop further violations of the Act, or statutory damages which statutory damages which can total to $2,000,000 or can total to $2,000,000 or moremore for inclusion of false or misleading transmission for inclusion of false or misleading transmission information, or if circumstances support a finding of information, or if circumstances support a finding of aggravated damages. aggravated damages.

– Statutory damages can reach Statutory damages can reach up to $250 per addressup to $250 per address to to which an e-mail is sentwhich an e-mail is sent

– 3x damages for aggravating circumstances3x damages for aggravating circumstances

– Attorney fees available for successful actionsAttorney fees available for successful actions


• Violations - CriminalViolations - Criminal– Violations – potential for imprisonment of Violations – potential for imprisonment of

between one (1) and five (5) years depending between one (1) and five (5) years depending on the egregiousness of the violation and other on the egregiousness of the violation and other factorsfactors

– FinesFines

International LawsInternational LawsInternational LawsInternational Laws• European Union - Article 13 - Unsolicited communications

– 1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent.

– 2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use.

– 3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation.

– 4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited.

– 5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected.

International LawsInternational LawsInternational LawsInternational LawsNon-EU Member CountriesNon-EU Member Countries

• ArgentinaArgentina• Australia Australia • Brazil Brazil • Canada Canada • Czech Republic Czech Republic • India India • Japan Japan • Russia Russia • South Korea South Korea • YugoslaviaYugoslavia

European Union Member CountriesEuropean Union Member Countries• AustriaAustria• BelgiumBelgium• DenmarkDenmark• FinlandFinland• FranceFrance• GermanyGermany• GreeceGreece• IrelandIreland• ItalyItaly• LuxembourgLuxembourg• NetherlandsNetherlands• NorwayNorway• PortugalPortugal• SpainSpain• SwedenSweden• United KingdomUnited Kingdom Source: www.spamlaws.com


• U.S. Attorneys – Dept. of JusticeU.S. Attorneys – Dept. of Justice

• Federal Agencies:Federal Agencies:– FTCFTC

– FDICFDIC

– SEC, etc.SEC, etc.

• State Attorneys GeneralState Attorneys General

• Internet Service Providers (ISPs)Internet Service Providers (ISPs)

Case Examples – SPAM LAWSCase Examples – SPAM LAWSCase Examples – SPAM LAWSCase Examples – SPAM LAWS

• Cases – DOJ, Federal AgenciesCases – DOJ, Federal Agencies

• Cases – ISPsCases – ISPs

• Cases – MiscellaneousCases – Miscellaneous

Cases – CAN SPAMCases – CAN SPAMDOJ, Agency SuitsDOJ, Agency SuitsCases – CAN SPAMCases – CAN SPAMDOJ, Agency SuitsDOJ, Agency Suits

• Federal Trade Commission v. Phoenix Federal Trade Commission v. Phoenix Avatar, LLC et al.Avatar, LLC et al.

• U.S. v. Daniel J. Lin et al.U.S. v. Daniel J. Lin et al.

• Federal Trade Commission v. Global Web Federal Trade Commission v. Global Web Promotions Pty Ltd., et al.Promotions Pty Ltd., et al.

Cases – CAN SPAMCases – CAN SPAMISP SuitsISP SuitsCases – CAN SPAMCases – CAN SPAMISP SuitsISP Suits

• WASHINGTON - March 10, 2004WASHINGTON - March 10, 2004 - America Online Inc. (NYSE: TWX), - America Online Inc. (NYSE: TWX), EarthLink Inc. (Nasdaq: ELNK), Microsoft Corp. (Nasdaq: MSFT) and EarthLink Inc. (Nasdaq: ELNK), Microsoft Corp. (Nasdaq: MSFT) and Yahoo! Inc. (Nasdaq: YHOO) today jointly announced that their Yahoo! Inc. (Nasdaq: YHOO) today jointly announced that their collaborative anti-spam industry efforts have resulted in the coordinated collaborative anti-spam industry efforts have resulted in the coordinated filing of the first major industry lawsuits under the new federal anti-spam filing of the first major industry lawsuits under the new federal anti-spam law, the Controlling the Assault of Non-Solicited Pornography and law, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, which went into effect Jan. 1.Marketing (CAN-SPAM) Act of 2003, which went into effect Jan. 1.

• The country's four leading e-mail and Internet service providers The country's four leading e-mail and Internet service providers announced the combined filing of announced the combined filing of six lawsuits against hundreds of six lawsuits against hundreds of defendantsdefendants, including some of the nation's most notorious large-scale , including some of the nation's most notorious large-scale spammers. spammers.

CasesCasesOther Suits and ActivityOther Suits and ActivityCasesCasesOther Suits and ActivityOther Suits and Activity

• The The FBIFBI has identified over 100 large-scale has identified over 100 large-scale spammers, targeting about half of the most spammers, targeting about half of the most egregious violators for prosecution later in 2004.egregious violators for prosecution later in 2004.

• Attorney General of New York and Microsoft filed Attorney General of New York and Microsoft filed an an $18 million state lawsuit$18 million state lawsuit in late 2003. in late 2003.

• Microsoft has filed eight lawsuits under CAN-Microsoft has filed eight lawsuits under CAN-SPAM against spammers. As of mid-2004, SPAM against spammers. As of mid-2004, Microsoft has filed over 50Microsoft has filed over 50 spam-related lawsuits. spam-related lawsuits.


• FTC RulemakingFTC Rulemaking – Congress: FTC to report or – Congress: FTC to report or make rules concerning:make rules concerning:– Definition of “Primary Purpose” of commercial e-mailDefinition of “Primary Purpose” of commercial e-mail

– Definition of “Transactional or Relationship” messageDefinition of “Transactional or Relationship” message

– Adequacy of 10-business day time frame for opt-outAdequacy of 10-business day time frame for opt-out

– Do-Not-e-mail registry (Do-Not-e-mail registry (FTC decision not to instituteFTC decision not to institute) )

– Wireless messaging – permits FCC to use CAN-SPAM in its rule-Wireless messaging – permits FCC to use CAN-SPAM in its rule-making efforts (by October 2004)making efforts (by October 2004)

– Detailed Report to Congress in 2006Detailed Report to Congress in 2006

– Precludes FTC from requiring “ADV” or similar identifiers, except Precludes FTC from requiring “ADV” or similar identifiers, except for sexually-oriented subject matterfor sexually-oriented subject matter


• FTC Rulemaking FTC Rulemaking – FTC declined to create national do-not-spam registry.FTC declined to create national do-not-spam registry.

– WASHINGTON (AP) - The Bush administration said it will not create a national do-not-spam registry to discourage unwanted e-mail, fearing it could backfire and become a target list for new victims. The commission was obligated by lawmakers to consider the proposal under the "can spam" legislation that Bush signed in December, an idea patterned after the FTC's enormously successful do-not-call registry to limit telemarketing calls. But the FTC concluded that on the Internet, unlike within the highly regulated U.S. telephone network, regulators would be "largely powerless to identify those responsible for misusing the registry.“ Regulators instead proposed broad adoption of new authentication technology that will make it more difficult to disguise the origin of unwanted e-mails. "A national do-not-e-mail registry, without a system in place to authenticate the origin of e-mail messages, would fail to reduce the burden of spam…" the commission said. If new authentication plans fail to emerge, the FTC will convene a federal advisory committee to determine whether the government could require Internet providers to adopt one. "Without effective authentication of e-mail, any registry is doomed to fail," the commission said. (TED BRIDIS AP Technology Writer)


FTC RECENT ACTIVITIES:FTC RECENT ACTIVITIES:• March 10, 2004

FTC Seeks Comments on Spam Regulation

• March 22, 2004

FTC, Justice Department Halt Identity Theft Scam - Spammer Posed as AOL and Paypal to Con Consumers Into Providing Credit Card Numbers

• April 7, 2004

FTC Extends Comment Period on Spam Regulation until April 20

• April 13, 2004

FTC Adopts Rule - Requires Notice That Spam Contains Sexually-Explicit Material

• June 15, 2004

No “Do Not Spam” to be implemented for now, FTC Tells Congress

Thank YouThank YouThank YouThank You

Dustin DuBoisDustin DuBois

[email protected]

(317) 236-2251 work(317) 236-2251 work

(317) 341-4706 cell(317) 341-4706 cell

e-mail use in an organization

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