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Running Afoul of CAN-SPAM
A Case Study

There's a guy I know, let's call him Ed (name changed to protect the guilty). He fancies himself a marketing guru of sorts and he's been around so long that he probably got his start selling pre-need burial packages to dinosaurs. Anyway, Ed runs a one-man shop selling seminars, tapes, books and other informational type products.

Ed, being a frugal sort, took to email marketing like a squirrel takes to nuts and began blasting emails to anyone who's address he could beg, borrow or ... After all, isn't this good direct mail practice - harvest every address you could and dump it into your database? Sure, but the costs associated with direct mail serve as an inhibitor on over abuse by any one direct mailer. The low cost and ease of emailing has served to be an uninhibitor in the world of UCE. The prolific spammers of the world are blasting hundreds of thousands of emails out every hour, millions a day.

And then there's Ed. He would never consider himself a spammer. He would be appalled if you labeled him such but let me explain why he is and why he's out of compliance with CAN-SPAM.

Ed heard about our e-marketing services from a professional acquaintance and approached me for a quote. I responded with a proposal (I emailed it) which he declined. No harm, no foul. Right? Right.

Now, you know what happened next. Ed, like any good direct marketer, harvested my email address from my proposal and next thing you know, I'm getting weekly solicitations from him. I'm getting his newsletter, his promotional mailings, even mailings he's doing on behalf of another vendor. Did I ask for this stuff? No. Am I interested? No. Did I give permission in any way? No. Did it matter to Ed? No. Like most direct marketers, Ed figures that it's a numbers game and the more numbers he's playing with the greater the likelihood of making a sale. In his view he was just following good business practices by casting the widest possible net for his goods and services.

Shoot, I'm a small business man myself who has engaged in same practices that Ed has so I understand ... no big deal, right? Wrong, you see I was a little irritated at Ed for turning down my original proposal. This irritation was compounded by his barging into my inbox (which I protect like the sultan's harem) once or twice a week and, to add insult to injury, Ed's latest promotional blasts have been on behalf of a semi-competitor that he has teamed with. Wow! the gall.

What's this have to do with CAN-SPAM? Plenty because it gives steamed up guys like me a potentially powerful tool with which to cause mischief for a guy like Ed. You see, even though Ed was aware of CAN-SPAM (I'd asked), he chose not to comply with the act. Why? Who knows? Maybe he thought, "I'm not big enough;" or "Nobody will notice a little guy like me;" or "Why change or bother or it's no big deal" ...take your pick of Ed's probable excuses.

Ed's problem is that I AM paying attention and this is what I see:

1. His email is totally unsolicited. There exists no prior relationship between he & I that could in any way be construed as granting permission for him to email market to me. Is he in violation of CAN-SPAM? Nope, just best practice and he paints himself a spammer by ignoring permission.

2. No unsubscribe mechanism. Oh, I'm sure that Ed would remove me from his database if I replied and asked him to but, according to the law, I don't have to ... he's the one who has to provide, in plain sight, the mechanism to me.

3. His emails contained no physical postal address ... another clear violation of the Act.

4. No notice, except implied, that his email was a solicitation. Another CAN-SPAM violation.

5. He was promoting a 3rd party's services which is a gray area under the Act and may be a violation by both Ed and his partner.

Now I didn't act on my baser instincts and report Ed. In fact, I did just the opposite - I let him know that he was out of compliance (you see, I was kind of hoping he'd realize what a 'guru' I was and give me his business). Did it make a difference? Not with Ed. He's still spamming me in violation of CAN-SPAM (see the sidebar). Hmmmm, wonder what the bounty is on an evil spammer like Ed...

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