Spring Cleaning: Cutting Gristle from Spam in E-mail Campaigns

The workshop is organized into a number of panels, with each addressing a discreet topic. The second panel will address issues of obtaining adequate consent and making proper disclosures in voluntarily obtaining consumers' e-mail addresses. These are the least settled, and thus most important, legal issues for e-mail marketers and consumers alike. While no new laws will result from this workshop, e-mail marketers and their lawyers should pay close attention to the discussion (especially by regulators) of the following issues.

Opt-Out. This discussion will examine whether an e-mail address is unsolicited if it is sent to an address collected by the sender based on notice and an opportunity to opt-out. The panelists will also likely address the kind of disclosures necessary for use in marketing and for disclosure to third parties for their own marketing purposes. This issue is important because most state anti-spam laws apply only to e-mail that is unsolicited.

Opt-In. What type of disclosures and consent are required to claim an e-mail marketing campaign or an e-mail marketing list is consent-based or opt-in?

Third-Party Marketers. What type of due diligence do marketers need to apply when purchasing or renting an e-mail marketing list? If a list is represented as consent-based or opt-in, do the marketers need to see the representations made and the consent received from consumers, or can they rely on representations and warranties in their contracts?

After-Sale Obligations. Does a marketer have any obligation to inform purchasers of its list that consumers have opted-out after the sale?

Panel 12 will focus on best practices for e-mail senders and receivers. The importance of this discussion is that moderators are likely to try to find some consensus on appropriate content of privacy policies and appropriate types of disclosures necessary for the use and disclosure of consumers' e-mail addresses. As the regulatory (and class-action) environment heats up, e-mail marketers and their lawyers will benefit from understanding these best practices.

Panel 7 will discuss use of Web beacons and spyware in e-mail marketing campaigns. This panel might shed some light on which disclosures regulators expect to see when these types of files are used.

Federal, State and International Regulation

Panel 9 will focus on existing and proposed state legislation and possible federal legislation regulating unsolicited commercial e-mail. Issues to keep an eye on include:

• State regulators' interpretation of their own statutes (including how they interpret their statutes' definition of 'unsolicited commercial e-mail' and similar terms);
• Level of support for new do-not-e-mail lists (already being considered by four states); and
• Level of support for any pre-emptive federal legislation and the FTC's reaction to it.

Panels 10 and 11 will address international regulation of unsolicited commercial e-mail. According to the FTC's Federal Register notice, 'Panelists ' will discuss their experience and plans for enforcing international laws,' 'collecting evidence across borders, and effecting relief against international entities.' This should be taken as a signal from the FTC that the agency is looking into cooperating with consumer-protection authorities in other countries. Marketers who engage in international campaigns ' and their lawyers ' should follow this discussion closely for any information that the FTC or state regulators give on whether, and under what circumstances, they have ' or soon will refer ' cases to regulators in other countries.

Security

Security issues will be addressed in Panel 5. While panelists will focus on the commission's concern that some e-mail marketers exploit security weaknesses inherent in e-mail, marketers should pay close attention to any comments made by commission staff or other regulators on their expectations for security practices necessary in any commerce resulting from e-mail campaigns.

Blacklists and Filtering

Panels 6 and 13 will address blacklists and filtering technology. E-mail marketers and their counsel should listen to discussion on standards for being placed on blacklists, and how to get off of them. Lawyers will also want to pay attention to panelists' discussion over the application of laws prohibiting unfair business practices as they apply to the creation of blacklists. Some discussion of the effectiveness of filtering technology in weeding out unwanted and deceptive e-mail and in allowing legitimate, consent-based e-mail is also likely to occur. As a practical matter, this session may well provide e-mail marketers some guidance on how to ensure that their consent-based, legitimate e-mails reach consumers.

Conclusion

The regulatory environment of unsolicited commercial e-mail is in flux, and is unlikely to gel for several years. Nevertheless, this workshop provides a good opportunity for regulators to settle at least some of the most fundamental issues affecting the e-mail marketing industry. E-mail marketers and their lawyers will likely find their time spent following the dialog at this workshop to have been well invested.

D. Reed Freeman Jr. is a partner in the competition group of Collier Shannon Scott in Washington, DC. He counsels clients on a wide range of consumer-protection issues, including privacy, information security, advertising and consumer-credit law.

The Federal Trade Commission (FTC) has repeatedly expressed concern that increased volume of spam affects ISPs, inconveniences consumers and, to the extent that such e-mail is fraudulent, undermines consumer confidence in e-commerce.

Recent FTC initiatives have focused on the means used to collect consumers' e-mail addresses and effectiveness of unsubscribe processes employed by some e-mail marketers. In light of increasing consumer and ISP concern over the proliferation of unsolicited commercial e-mail, as well as e-mailers' frustration over what the rules are for this type of marketing, the FTC has announced a workshop to be held from April 30 – May 2 addressing a variety of issues associated with the proliferation of unsolicited commercial e-mail in recent years. The workshop will run from 8:30 a.m. to 5:30 p.m. at the FTC, 601 New Jersey Avenue N.W., Washington, DC. The event is open to the public for free and does not require preregistration.

Disclosures and Consent

The workshop is organized into a number of panels, with each addressing a discreet topic. The second panel will address issues of obtaining adequate consent and making proper disclosures in voluntarily obtaining consumers' e-mail addresses. These are the least settled, and thus most important, legal issues for e-mail marketers and consumers alike. While no new laws will result from this workshop, e-mail marketers and their lawyers should pay close attention to the discussion (especially by regulators) of the following issues.

Opt-Out. This discussion will examine whether an e-mail address is unsolicited if it is sent to an address collected by the sender based on notice and an opportunity to opt-out. The panelists will also likely address the kind of disclosures necessary for use in marketing and for disclosure to third parties for their own marketing purposes. This issue is important because most state anti-spam laws apply only to e-mail that is unsolicited.

Opt-In. What type of disclosures and consent are required to claim an e-mail marketing campaign or an e-mail marketing list is consent-based or opt-in?

Third-Party Marketers. What type of due diligence do marketers need to apply when purchasing or renting an e-mail marketing list? If a list is represented as consent-based or opt-in, do the marketers need to see the representations made and the consent received from consumers, or can they rely on representations and warranties in their contracts?

After-Sale Obligations. Does a marketer have any obligation to inform purchasers of its list that consumers have opted-out after the sale?

Panel 12 will focus on best practices for e-mail senders and receivers. The importance of this discussion is that moderators are likely to try to find some consensus on appropriate content of privacy policies and appropriate types of disclosures necessary for the use and disclosure of consumers' e-mail addresses. As the regulatory (and class-action) environment heats up, e-mail marketers and their lawyers will benefit from understanding these best practices.

Panel 7 will discuss use of Web beacons and spyware in e-mail marketing campaigns. This panel might shed some light on which disclosures regulators expect to see when these types of files are used.

Federal, State and International Regulation

Panel 9 will focus on existing and proposed state legislation and possible federal legislation regulating unsolicited commercial e-mail. Issues to keep an eye on include:

• State regulators' interpretation of their own statutes (including how they interpret their statutes' definition of 'unsolicited commercial e-mail' and similar terms);
• Level of support for new do-not-e-mail lists (already being considered by four states); and
• Level of support for any pre-emptive federal legislation and the FTC's reaction to it.

Panels 10 and 11 will address international regulation of unsolicited commercial e-mail. According to the FTC's Federal Register notice, 'Panelists ' will discuss their experience and plans for enforcing international laws,' 'collecting evidence across borders, and effecting relief against international entities.' This should be taken as a signal from the FTC that the agency is looking into cooperating with consumer-protection authorities in other countries. Marketers who engage in international campaigns ' and their lawyers ' should follow this discussion closely for any information that the FTC or state regulators give on whether, and under what circumstances, they have ' or soon will refer ' cases to regulators in other countries.

Security

Security issues will be addressed in Panel 5. While panelists will focus on the commission's concern that some e-mail marketers exploit security weaknesses inherent in e-mail, marketers should pay close attention to any comments made by commission staff or other regulators on their expectations for security practices necessary in any commerce resulting from e-mail campaigns.

Blacklists and Filtering

Panels 6 and 13 will address blacklists and filtering technology. E-mail marketers and their counsel should listen to discussion on standards for being placed on blacklists, and how to get off of them. Lawyers will also want to pay attention to panelists' discussion over the application of laws prohibiting unfair business practices as they apply to the creation of blacklists. Some discussion of the effectiveness of filtering technology in weeding out unwanted and deceptive e-mail and in allowing legitimate, consent-based e-mail is also likely to occur. As a practical matter, this session may well provide e-mail marketers some guidance on how to ensure that their consent-based, legitimate e-mails reach consumers.

Conclusion

The regulatory environment of unsolicited commercial e-mail is in flux, and is unlikely to gel for several years. Nevertheless, this workshop provides a good opportunity for regulators to settle at least some of the most fundamental issues affecting the e-mail marketing industry. E-mail marketers and their lawyers will likely find their time spent following the dialog at this workshop to have been well invested.

D. Reed Freeman Jr. is a partner in the competition group of Collier Shannon Scott in Washington, DC. He counsels clients on a wide range of consumer-protection issues, including privacy, information security, advertising and consumer-credit law.