1) "CAN-SPAM is an opt-out law. For most purposes, permission of the
e-mail recipient is not required, but if a recipient wants to
unsubscribe or opt-out, you'd better stop sending e-mails or be
subject to severe penalties."
"It's been pretty common practice for computer robots to crawl
webpages and make a record of ("harvest") any e-mail addresses that
appear on those pages. Under the new Act, such using harvested e-mail
addresses to send e-mails is illegal and can result in aggravated
penalties. Does the law exempt e-mail addresses that were harvested
prior to the new law? I don't think so. The Act states that it is
unlawful to send -- or provide e-mail addresses for an e-mailing --
"if such person had actual knowledge, or knowledge fairly implied on
the basis of objective circumstances that the electronic mail address
of the recipient was obtained using an automated means from an
Internet website..." (Sec. 5(b)(1)). Automated harvesting of e-mail
addresses in not in itself unlawful, but using those harvested
addresses to send e-mails is unlawful -- so long as the e-mailing
takes place after the effective date of the law."
2) "When the CAN-SPAM Act becomes effective it will supercede all
State anti-spam laws."
3) No. The Federal law supersedes state laws.
4) "A State Attorney General can sue for $250 per illegal e-mail
message up to a maximum of $2 million -- more if the offense includes
certain aggravating violations (Sec. 7(f)). Internet Service Providers
can sue in federal district court for $100 per illegal e-mail message
up to a maximum of $1 million or more (Sec. 7(g)(3)).") "You are
responsible not only for the legality of your own e-mail lists, but
also the legality any lists you rent or buy." Liability can arise
from an improperly formatted message, including e-mail deception,
harvesting e-mail addresses, randomly generating e-mail addresses,
using e-mail for fraudulent or other illegal purposes, and not having
an "... unsubscribe system that operates for at least 30 days after
your last mass e-mailing."
"These crimes can get you three to five years in the federal slammer
plus confiscation of any real or personal property you've purchased
with your spam earnings."
5) "The law covers both spammers and those who "procure" their
services (Secs. 3(9), 3(12), and 3(16)(A)). You can't just outsource
your spamming and get off the hook." Therefore, you are equally
liable either way.
6) It is safe to e-mail provided that you comply with all of the terms
of the Act. Of considerable importance is obtaining e-mail addresses
in a legitimate way (not harvesting or randomly generating them or
buying or renting a list created using those methods). Although not
legally required, a confirmed opt-in system is recommended so that you
are e-mailing people who actually want your messages.
Sincerely,
Wonko
Source: "How to Comply with the CAN-SPAM Act of 2003" by Dr. Ralph F.
Wilson, Web Marketing Today (Revised January 15, 2004)
http://www.wilsonweb.com/wmt9/canspam_comply.htm |
Request for Answer Clarification by
billxm-ga
on
04 Oct 2005 06:13 PDT
PLEASE REFERENCE THE LAW AND QUOTE IT THAT STATES THAT
1) SENDING -HARVESTED- EMAILS (IF THEY ARE IN COMPLIANCE WITH THE
FORMAT OF CAN SPAM) ARE ILLEGAL, AND WHAT PENALTIES.
2) SENDING AN -UNSOLICITED- EMAIL (BUT THAT IS IN COMPLIANCE WITH THE
FORMAT OF CAN SPAM) ARE ILLEGAL, AND WHAT PENALTIES.
IM NOT A LAWYER, BUT MY READ OF CAN SPAM WAS THAT IT DEALS WITH FORMAT
OF THE EMAIL, AND -IF- THE FORMAT ISNT RIGHT (IE DECEPTIVE, OR NO OPT
OUT) -AND- YOU HARVESTED IT AND SENT IT THERE WERE ADDITIONAL
PENALTIES.
I HAD THOUGHT, THAT SENDING BUSINESS AD EMAILS WAS LEGAL PROVIDED YOU
COMPLIED WITH THE NON DECEPTION, AND OPT OUT AND OTHER CAN SPAM RULES.
AM I RIGHT OR WRONG ?
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Clarification of Answer by
wonko-ga
on
05 Oct 2005 10:46 PDT
A summary from the Federal Trade Commission: "The CAN-SPAM Act:
Requirements for Commercial Emailers"
http://www.ftc.gov/bcp/conline/pubs/buspubs/canspam.htm
The full text of the law is available here, detailing penalties and
the prohibition on harvesting e-mail addresses: "Controlling the
Assault of Non-Solicited Pornography and Marketing Act of 2003
(CAN-SPAM Act)
Public Law 108?187" http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_cong_public_laws&docid=f:publ187.108.pdf
The summary from the FTC site agrees with your interpretation, but
this portion of the law would appear to outlaw harvesting regardless
of message format (pages 10 - 11):
"(b) AGGRAVATED VIOLATIONS RELATING TO COMMERCIAL ELECTRONIC
MAIL.?
(1) ADDRESS HARVESTING AND DICTIONARY ATTACKS.?
(A) IN GENERAL.?It is unlawful for any person to initiate
the transmission, to a protected computer, of a
commercial electronic mail message that is unlawful under
subsection (a), or to assist in the origination of such message
through the provision or selection of addresses to
which the message will be transmitted, if such person
had actual knowledge, or knowledge fairly implied on the
basis of objective circumstances, that?
(i) the electronic mail address of the recipient was
obtained using an automated means from an Internet
website or proprietary online service operated by
another person, and such website or online service
included, at the time the address was obtained, a notice
stating that the operator of such website or online
service will not give, sell, or otherwise transfer
addresses maintained by such website or online service
to any other party for the purposes of initiating, or
enabling others to initiate, electronic mail messages;"
Another expert indicates that harvesting e-mail from the web is
illegal under CAN-SPAM:
"CAN-SPAM also makes it illegal to harvest email lists from the web."
"Does CAN-SPAM Really Matter?" by Bill Nussey, CircleID (February 28,
2005) http://www.circleid.com/article/952_0_1_0_C/
My impression from reading the law is that sending unsolicited e-mails
to harvested addresses is illegal, regardless of whether the messages
sent are formatted to comply. My search of various articles on the
Internet using the keywords (harvesting CAN-SPAM) found ample support
for this position.
Sincerely,
Wonko
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