Cyber Eye: Entrepreneurs seek market in Can-Spam compliance

William Jackson

A recent study of 40,000 pieces of unsolicited commercial e-mail found that only 3 percent complied with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.

'The overwhelming majority of unsolicited commercial e-mail continues to breach the federal antispam law,' said Scott Chasin, chief technology officer of MX Logic Inc. of Denver.

It isn't that e-mail marketers don't want to comply, it's more a matter of understanding, said Vishal Mahtani, chief operating officer of Can-Spam Compliance Inc. of San Diego, one of a small but growing number of companies that offer to help marketers stay within the law.

Can-Spam, which went into effect Jan. 1, requires that unsolicited commercial e-mail be clearly identified, contain a valid address and have a mechanism for recipients to opt out of future mailings. In theory at least, the incentives for compliance are high. The law provides civil and criminal sanctions that range into the millions of dollars.

But enforcement is difficult, said Brian Huseman, staff attorney for the Federal Trade Commission. FTC has the option of going after the business being advertised as well as the mailer actually sending the spam.

'It is still very difficult to find who is responsible,' Huseman said. In one spam case, he said, FTC had to issue more than two dozen subpoenas to track down an entity that could be sued.

Since the first of the year, a nascent industry has been trying to cash in on the new law. For example, Anconia Inc. of New York touts RocketSales software as a Can-Spam-compliant bulk e-mail program that automatically handles unsubscribe requests. Another outfit, at www.icanspam.com, offers a compliance certification service, promising to limit corporate exposure of advertisers and third-party mailers for a fee of $99 a month. Contacting the company is tough, though. The site requires a user name and password to enter.

Mahtani said his company serves as an independent third party for Can-Spam compliance, so that advertisers aren't tied to a single ad agency or mass mailer.

One of the most confusing points about the antispam law is who's liable, Mahtani said. Before Jan. 1, industry practice held that the owner of the list being used was the responsible party.

'The government turned the tables and made it the advertiser's responsibility,' he said.

His company manages opt-out requests for online advertisers. It also licenses software to automate compliance testing and offers an eyes-on service to evaluate each e-mail campaign.
So far, however, spammers do not seem to be taking advantage of the help that's available. They appear to be waiting for enforcement to begin.

'Maybe somebody needs to get hurt' before they begin taking the law seriously, Mahtani said.
And maybe a lot of spammers just don't care what the law says.

About the Author

William Jackson is freelance writer and the author of the CyberEye blog.

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