Commentary

It's Not Yet Time To Can CAN-SPAM

European marketers will face some tough new privacy restrictions when the General Data Protection Regulation takes effect next year. But the exact opposite may happen in the United States. The FTC is reviewing the CAN-SPAM law as part of its anti-regulatory initiative.

The FTC is asking for comments on the impact and benefits of the law, possible conflict between federal and state local laws (federal preempts state in most cases) and the effect on the law of technological and economic changes, according to National Law Review.

To refresh your recollection, CAN-SPAM forbids the use of deceptive headers and subject lines, among other things. Ads have to be identified as such, and consumers must be allowed to opt out.  So what do we lose if it is revised or tossed?

First, no one should get too worked up about this issue. The FTC can tweak certain elements, but it can’t change the law — Congress has to do that, the National Law Review continues. And that probably will not happen. Nor do we want Congress to mess with it: Who knows where it would lead? 

As in the past, you can expect that there will be strong differences of opinion. On the mild side, Lexology wrote: “The willingness of the FTC to revisit the law’s impact on legitimate email marketers is certainly welcome news to those operating in the space.”

The consumerist outlook is a little different. Krebs on Security reported: “Ron Guilmette, an anti-spam activist whose work has been profiled extensively on this blog, didn’t sugar-coat it, calling CAN-SPAM “a travesty that was foisted upon the American people by a small handful of powerful companies, most notably AOL and Microsoft, and by their obedient lackeys in Congress.”

“According to Guilmette, the Act was deliberately fashioned so as to nullify California’s more restrictive anti-spam law, and it made it impossible for individual victims of spam to sue spam senders,” Krebs continues. “Rather, he said, that right was reserved only for the same big companies that lobbied heavily for the passage of the CAN-SPAM Act.”

That raises a good point: The states are already stepping into the privacy breach left by the Federal government in other areas. Which vision of the law is going to prevail?

All that aside, let’s say that CAN-SPAM is simply eliminated. Not that they obey the law anyway, but this would free the scam artists to do whatever they want.

And legitimate companies? Maybe they will be freed of some of some burdensome technical requirements. But we bet they observe the spirit of the law anyway. They understand that it’s not just their reputations at stake, but that of the whole industry.

And they know that consumers have two remedies at hand if they don’t like what’s happening.

The unsubscribe button. And the spam folder. 

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