New Legal Developments for Cyberspace

© 2004 Door & Access Systems
Publish Date: Spring 2004
Author: Naomi Angel
Page 66


New Legal Developments for Cyberspace

By Naomi R. Angel, DASMA Legal Counsel

The Can-Spam Act

The government is cracking down on spam.

A new law, effective Jan. 1, 2004, provides criminal and civil penalties for the unlawful transmission of certain unsolicited commercial E-mail. It’s called the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or CAN-SPAM Act.

The Act affects any company that (1) uses E-mail to communicate with existing or potential customers, (2) sends commercial E-mail on behalf of others, (3) uses third party E-mail lists to reach potential customers, and/or (4) collects E-mail address lists to rent, sell, or share.

The Act does not apply to “transactional or relationship messages” in which the primary purpose is non-commercial. Messages are okay if they’re about recalls and other customer service notices about health, security, and safety.

In unsolicited messages, advertisers and E-mail marketers must identify the advertisement and themselves within the message. They must also provide a means for recipients to opt out of future mailings.

The harvesting of E-mail addresses from the Internet using cookies or other automated means is now prohibited. The Act criminalizes some of the most calculated spamming tactics, including falsified header information and the unauthorized use of the computer facilities of others to send spam.

Develop a Policy

If your business uses E-mail to communicate with existing or potential customers, you should develop and implement a commercial E-mail policy. The policy should include:

  • Content requirements for all commercial E-mail. Make sure the advertisement, the advertiser, and a physical mailing address are included clearly and conspicuously. This is not needed if the recipient has already consented to receive such messages.
  • Easy-to-use opt-out mechanisms for all commercial E-mail. The opt-out function must continue to work for at least 30 days after transmission of an E-mail.
  • Strict procedures for handling opt-out requests. Make sure that no commercial E-mails are sent to an address 10 business days after the address requests to opt out.
  • Effective staff training regarding the Act, including the provisions related to deceptive transmission and content.

For more information and guidance, consult your legal counsel.

April 4: Cyber Security Day

On the two days you reset your clocks, the FTC is encouraging home computer users and small businesses to take measures toward cyber security and computer protection. These are the same two days in the spring and fall when you replace your smoke alarm batteries.

On these two days, you should update your anti-virus software and scan your computer for viruses. By securing your computer, you play an important role in protecting our nation’s Internet infrastructure.

The campaign is sponsored by the National Cyber Security Alliance. Internet users are urged to visit its Web site at for security information, resources, and other educational materials.

Do You Have a Policy on E-mail Retention?

If you don’t already have a policy on E-mail retention, you should develop one. Which E-mail messages should you save?

  • Save important records, such as contracts. If you receive the contract as an attachment to an E-mail, and the cover E-mail states, “We accept the contract,” save the cover E-mail, too.
  • If you would save a paper document, retain the E-mail. Otherwise, delete it. If you save a file, store it in a folder so that it can be easily located. You should also print and file it as a paper document.
  • Save all documents that are relevant to current or foreseeable litigation. If you have questions, consult with legal counsel before discarding anything.
  • Delete old, unnecessary E-mail. Do not back up E-mail because that’s the same as keeping it on your computer. If subpoenaed, you and your attorney will have to sort through everything, whether it’s on the computer or on tape. The expense of electronic discovery is a great motivation to force a case into settlement.
  • Train your employees to keep E-mails for only 30 days. After 30 days, you and/or your employees must decide whether an E-mail is a record. If not, get rid of it.

This article is provided solely for informational purposes and does not constitute legal advice. If you have specific questions or concerns about a legal issue, consult your company's legal counsel for guidance.