The CAN-SPAM Act and what it means for MIT communicators

1. The CAN-SPAM Act and what it means for MIT communicators Marsha SandersSenior Communications Officer Monica LeeDirector, Publishing Services Bureau MIT Info Group, January 19, 2005

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 commercialemails 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

3. But we are a non-profit institution! • Under tax law, we are not commercial; underIntellectual Property law, we can becommercial • 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!

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)?

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)

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)

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

8. FTC Definition of Commercial Email Released 1/12/05; effective 3/28/05

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 lineof 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

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 lineof 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)

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

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

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”)

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

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)

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

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

18. Contacts • Marsha SandersSenior Communications Officermarshas@mit.edu • Monica LeeDirector, Publishing Services Bureaumolee@mit.edu • Ann HammerslaSenior Counsel for Intellectual Propertyahammer@mit.edu