FTC says yes, you still Can Spam

I just stumbled onto the fact that the FTC recently announced some changes to the Can-Spam Act, or as I started calling it even before it was enacted, the “Yes, You Can Spam Act.” Could it be that the FTC has come up with some fixes that will help? Well, no, I’m afraid not.

The FTC issued four new rules based on comments filed by interested parties as it is supposed to do under the 2003 law. Only one of the new rules could have any positive effect that I can see, a clarification that e-mail recipients cannot be required to pay a fee or provide information other than their e-mail address to opt out from receiving spam.

In the meantime, another of the new rules takes the worst aspect of Can-Spam — the fact that we are all expected to opt out from every spamming list using the opt-out procedure designated by the spammer — and makes it even worse. In “scenarios where multiple marketers use a single e-mail message” to spam you, only one of the senders – the one in the From: field — need be designated the official sender who is responsible for honoring opt-outs. That means the other “marketers” who used that spam message, not to mention the spamming service that actually provided the e-mail address list, don’t need to honor opt-outs. So try as you might to get yourself off a list, the real spammer can just keep changing the designated sender in the From: field and legally keep on spamming you.

What’s really pathetic is that the public comments on which these rule changes are based were mostly submitted back in March of 2005. So it took the FTC over three years of mulling it over to come up with these less-than-helpful changes to a law that was clearly not working even back then. You have to wonder how many of those who filed those comments in 2005 or earlier would even care now. Not many, I bet, because the battle has been lost for any who were actually trying to curb spam.

Of course, it’s not really completely fair to blame the FTC for all this, because no amount of tweaking at this point is going to fix the Yes, You Can Spam Act. By requiring opt-outs, Congress took a fatally flawed approach back in 2003, when there still might have been a chance to save e-mail from the depredations it has suffered subsequently. E-mail is now virtually unusable for many applications because of spam itself and the protection measures people have been forced to adopt to fight it.

That Congress failed with the Can-Spam Act of 2003 is certainly not news, so why pay any attention to how the FTC is still struggling to fix it even now? Only because Congress is once again flirting with a very similar approach to a very similar problem, about which I expect some real news in the very near future. So stay tuned.

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