FTC Spam Proceeding

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Thu, 11 Mar 2004 12:34:03 -0800
From: Robert Cannon <rcannon100 () YAHOO COM>

For Release: March 10, 2004

FTC Seeks Comments on Spam Regulation

The Federal Trade Commission will publish a Federal
Register Notice Thursday, March 11, 2004, seeking
public comment on regulations regarding unsolicited
commercial e-mail - spam. The CAN-SPAM Act, which took
effect January 1, 2004, requires that the Commission
issue regulations "defining the relevant criteria to
facilitate the determination of the primary purpose of
an electronic mail message." Since the CAN-SPAM Act
applies almost exclusively to "commercial electronic
mail messages," defining the criteria used to
determine the "primary purpose" of an e-mail will
clarify how to determine whether the Act applies to
certain electronic messages.

Beginning Thursday, March 11, comments can be filed
electronically through the federal government's
centralized rulemaking Web site, www.regulations.gov.
The FTC will post a "web form" at the site to make it
easier for commenters to address the various issues in
the Federal Register notice. Commenters may address as
many or as few issues as they wish, or skip the form
and write what they choose in a text box, or attach a
separate document for submission to the record.

According to the Federal Register Notice, the FTC is
seeking comment on the mandatory "primary purpose"
rulemaking, and on several other issues, including
four other areas of discretionary rulemaking authority
established in the Act.

First, the Act designates five categories of messages
as "transactional or relationship messages," which are
exempt from the provisions of the Act. For example,
messages sent "to facilitate, complete, or confirm a
transaction the recipient has agreed to enter into
with the sender" are deemed to be "transactional or
relationship messages," and are therefore exempt from
the Act's requirements that apply only to commercial
e-mail. The Act gives the FTC authority to issue rule
provisions that modify the definitions of these
categories of "transactional or
relationship" messages if it finds such modification
is necessary to accommodate technological changes in
or to accomplish the purposes of the Act. The
Commission seeks comment whether it should exercise
this authority, and if so, how.

Second, the CAN-SPAM Act requires that e-mailers allow
recipients to opt out of receiving further commercial
e-mail and provides senders 10 business days to
process opt out requests. The Act gives the Commission
the authority to modify the 10 day period for
effectuating opt-out requests. The FTC is seeking
comment on the reasonableness of the 10-business-day
time period and whether a different time period would
be more reasonable, taking into account the interest
in allowing consumers to opt out, the interests of
recipients of spam, and the burdens imposed on senders
of lawful commercial e-mail.

Third, the Act defines certain practices, such as
e-mail address "harvesting" and "dictionary attacks"
as aggravated violations. The Act significantly
increases the amount of damages a violator may be
liable to pay if he or she engages in an aggravating
violation while violating another provision of the
Act. The CAN-SPAM Act authorizes the Commission to
designate other practices as aggravated violations.
The FTC seeks comment on what additional activities
and practices, if any, should be added to the list of
aggravated violations.

Fourth, the Act provides that the Commission may issue
regulations to implement the provisions of the Act,
and the FTC is seeking comment on whether additional
regulations would be helpful. The notice asks for
comment on the following specific issues:
Would it assist companies and individuals seeking to
comply if the Commission were to adopt rule provisions
clarifying the legal obligations of initiators and
recipients who forward messages in
"forward-to-a-friend" scenarios?


Would it be helpful if the Commission were to adopt
rule provisions clarifying the obligations of multiple
senders of a single e-mail under the Act?


Questions have arisen about whether post office boxes
or commercial mail drops satisfy the Act's requirement
that commercial e-mail messages include a "valid
physical postal address of the sender." Would it would
be useful for the Commission to adopt rule provisions
clarifying what constitutes a "valid physical postal
address"?


The Act prohibits false or misleading transmission
information, but states that a "from" line that
accurately identifies any person who initiated the
message will not be considered false or misleading.
The notice asks whether the Act's treatment of "from"
line information is sufficiently clear, and whether
the Act requires the "from" line to identify a sender
by name.

The Notice also seeks comment on four reports to
Congress required by the CAN-SPAM Act:
A report on establishing a nationwide Do Not E-Mail
Registry, due June 16, 2004;


A report on establishing a system for rewarding those
who supply information about CAN-SPAM violations, due
September 16, 2004;


A report setting forth a plan for requiring commercial
e-mail to be identifiable from its subject line, due
June 16, 2005; and


A report on the effectiveness of CAN-SPAM, due
December 16, 2005.

Starting March 11, comments can be filed
electronically at http://www.regulations.gov.
Commentors should select "Federal Trade Commission" at
"Search for Open Regulations," locate the summary of
this Notice, click on "Submit a Comment on this
Regulation," and complete the form. Comments
addressing the "National Do Not E-mail" Registry must
be submitted on or before March 31, 2004. Comments
addressing any other aspect of the CAN-SPAM Act must
be submitted on or before April 12, 2004. Written
comments should refer to the CAN-SPAM Act Rulemaking,
Project No. R411008 on both the envelope and the text.
The FTC is requesting that any comment filed in paper
form be sent by courier or overnight service, if
possible, as U.S. Postal Service mail in the
Washington area and at the Commission is subject to
delay due to heightened security precautions. Comments
can be delivered by courier or overnight service to
Federal Trade Commission/Office of the Secretary, Room
159-H, 600 Pennsylvania Avenue, N.W., Washington, D.C.
20580. Comments can be mailed by U.S. Postal Service
to the following address: Federal Trade Commission,
CAN-SPAM Act, Post Office Box 1030, Merrifield, VA
22116-1030. Comments will be placed on the public record.

=====
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See www.bushin30seconds.org

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