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By Michael D. Jenkins

Here is what you can and can't do under current laws:

Here is what you can and can't do under current laws:

What You Can Do

Not surprisingly, you can send e-mail solicitations to anyone who has affirmatively consented to receive such messages from you.

You can send e-mails to a customer or former customer in the process of facilitating or completing a transaction or when responding to questions or service requests from the customer.

You can also send information to a customer with whom you have an ongoing relationship, such as subscribers to a publication or service you offer, or to notify a customer of product updates or upgrades to which they may be entitled.

You do not have to first check the "Do-Not-E-Mail Registry" before sending out solicitations, since, as noted above, the FTC decided not to create such a registry.

Otherwise, you can only send out SPAM if it meets all of the following legal requirements:

What You Can't Do (Without the Affirmative Consent of the Recipient)

Do not send advertising e-mail with false or misleading headers or subject lines (a tactic commonly used to trick recipients into opening a junk mail message, such as "Lucky you! You have won the Irish Sweepstakes!").

Do not use false or inaccurate routing information: "From" and "To" routing information must be accurate and must identify the sender. "Spoofing" (using fake return e-mail addresses) carries quadrupled civil penalties!

Do not promote fraudulent schemes, such as chain letters, pyramid schemes, or variations on the "Nigerian Scam" described above. That types of solicitations are illegal under numerous other federal and state laws, never mind the anti-SPAM laws.

Don not send e-mail solicitations to "dictionary lists" of e-mail addresses that are created by mechanically generating large numbers of target addresses, such as: abc1@xyz.com, abc2@xyz.com, abc3@xyz.com, etc.

Do not send e-mail solicitations to addresses that have been mechanically "harvested" (gathered automatically from Internet web sites by robot software).

Do not send advertising to anyone who has asked you not to e-mail them.

Do not send advertising solicitations unless you do all of the following in the e-mail:

Clearly identify the message as advertising, and advise the user how to opt out of receiving further solicitations, using an e-mail or other Internet-based mechanism by which the recipient can opt out. You must process the recipient's request within ten business days of receipt and must not provide that recipient's e-mail address to another party;

Include a valid e-mail return address;

Identify your company; and

Include your physical postal address.

Do not send solicitations with sexual content unless the recipient has affirmatively consented to receive such messages from you, or unless the header or subject line provides a warning that the e-mail contains sexually explicit material or is promoting such material.
WARNING: It is not illegal for you to send out unsolicited commercial e-mail, or SPAM. But you MUST heed all of the foregoing rules. Any failure to toe the line can subject you to heavy criminal penalties and fines, as well as potentially disastrous statutory damages from the private lawsuits that can be brought against you by ISPs.

Europe Has Anti-Spam Laws, Too

While unsolicited SPAM is illegal in the U.S., you may be thinking, "OK, I'll just send my SPAM solicitations to e-mail addresses in Europe, instead of to U.S. recipients." Forget that. The 2002 EU Directive on Privacy and Telecommunications gives everyone in EU countries the right to seek legal damages against the senders of unwanted e-mail, fax, or text messages.


Michael Jenkins is an author.
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