MIT Info Group, January 19, 2005 Page 1 The CAN-SPAM Act and what it means for MIT communicators MIT Info Group, January 19, 2005 Marsha Sanders Senior Communications Officer Monica Lee Director, Publishing Services Bureau

MIT Info Group, January 19, 2005 Page 2 What is the CAN-SPAM Act?  Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003  It does more than the name implies  First law with national standards for sending commercial s and newsletters; this is the first law to go beyond spammers  Effective January 1, 2004 under Federal Trade Commission (FTC) enforcement; pre-empts state spam laws

MIT Info Group, January 19, 2005 Page 3 But we are a non-profit institution!  Under tax law, we are not commercial; under Intellectual Property law, we can be commercial  Universities sometimes engage in commercial campaigns without an education-specific purpose  Although the legislation doesn’t apply specifically to non-profits, we recommend: Adhere to well-defined best practices!

MIT Info Group, January 19, 2005 Page 4 Examples of commercial s  s promoting sporting or theatrical events  s promoting products of the institution  Credit cards, embossed clothing, publications (other than educational publications)  newsletters to alumni promoting products or services (other than educational trips)  Are you already working with Jim Morgan’s office (MIT Controller)?

MIT Info Group, January 19, 2005 Page 5 Exempt Commercial s  Transactional or relationship messages  Facilitate, complete or confirm a transaction  Provide warranty, product recall, safety or security information  Notify concerning a subscription, membership, account, or other relationship  Provide HR or benefits information to employees  Deliver solicited goods or services  s serving the Institute’s purpose of advancing education (example: charitable donations, prospective student recruitment, conferences)

MIT Info Group, January 19, 2005 Page 6 Commercial – Recipients  CAN-SPAM protects all spam recipients: consumers, businesses and organizations  It applies to both a mass campaign and sent to one specific address; does not apply to sent to a Web site  Covers addresses specific to a wireless device  Prior express consent required (must opt-in)  In effect October 2004, enforced by the FCC; FCC will develop database of wireless numbers)

MIT Info Group, January 19, 2005 Page 7 Hybrid Messages  Subject to CAN-SPAM if “the average consumer would reasonably conclude that the is an advertisement”  Key components  Subject line  Beginning of message  Subject to FTC’s final definition of a commercial – released last week

MIT Info Group, January 19, 2005 Page 8 FTC Definition of Commercial Released 1/12/05; effective 3/28/05

MIT Info Group, January 19, 2005 Page 9 FTC Commercial Definition: Hybrid  For s containing both commercial and “transactional or relationship” content, the primary purpose will be considered commercial if either:  A recipient reasonably interpreting the subject line of the would likely conclude that the message contains commercial content, or  The ’s “transactional or relationship” content does not appear in whole or substantial part at the beginning of the body of the message

MIT Info Group, January 19, 2005 Page 10 FTC Commercial Definition: Hybrid  For s containing both commercial and content that is neither transactional nor relationship, the primary purpose will be considered commercial if either:  A recipient reasonably interpreting the subject line of the would likely conclude that the message contains commercial content, or  A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the is commercial (relevant factors include proportion of commercial/non-commercial content, graphics, type size and style)

MIT Info Group, January 19, 2005 Page 11 International s: Europe  European s already subject to more severe rules than those established by CAN- SPAM (commercial and non-commercial)  The European Union (E.U.) must protect their residents against unsolicited direct marketing s as of November 1, 2003  No commercial can be sent without the recipient’s prior consent unless there is an existing transaction or sale

MIT Info Group, January 19, 2005 Page 12 CAN-SPAM Checklist An honest, non-deceptive, subject line and message text consistent with the subject line Opt-out mechanism (simple “unsubscribe” or URL to a web site to opt-out) Working return address (the “From:” line should not be ambiguous) Valid physical postal address of the sender (no post office boxes) in signature block

MIT Info Group, January 19, 2005 Page 13 Checklist: Subject Line  A clear and conspicuous identification that the is an advertisement or solicitation (no requirement to include any particular language or labeling such as “advertisement”)

MIT Info Group, January 19, 2005 Page 14 Checklist: Opt-Out  A working return address or automated means to opt-out that must function for 30 days after the was sent  Opt-out request must be honored within 10 days  The sender may not disclose the recipient’s address to third parties  Opt-out process should be specific to the unit of the Institute that sent the ; do not bind the entire Institute from sending s to this person

MIT Info Group, January 19, 2005 Page 15 Mail lists: IS&T’s Mailman  Web-based list management system  Spam filtering privacy option: owners control what gets sent to the list  Prevent unwanted posts  Using an outside vendor for mass campaigns must follow the same ethical standards that MIT uses (lists may not be sold, for example)

MIT Info Group, January 19, 2005 Page 16 What are other schools doing?  Penn State: Marketing Privacy communication  U of Chicago: Mass and Bulk Mailings policy  Stanford University: on anti-spam laws to the community

MIT Info Group, January 19, 2005 Page 17 Sources  Amy Worlton, Wiley Rein & Fielding, LLP, December 7, 2004 audio seminar, sponsored by ACUTA  CAN-SPAM Act   canspam.htm  FTC definition of commercial

MIT Info Group, January 19, 2005 Page 18 Contacts  Marsha Sanders Senior Communications Officer  Monica Lee Director, Publishing Services Bureau  Ann Hammersla Senior Counsel for Intellectual Property