September 29, 2005

Attorneys, like everyone else, are constantly bombarded by unsolicited bulk e-mail, or “spam,” ranging from scam stock tips to, well, products that would make Hugh Hefner blush.  You probably curse the sender, hit delete, and then promptly start your daily e-mailing of your clients and colleagues.   Do you ever stop to consider whether you are being cursed by your recipients for sending spam?  Moreover, did you know you could be in violation of federal law?   

The law you may be breaking is the CAN-SPAM Act of 2003.  To date, the Act has been remarkably unsuccessful in stopping spammers.  According to MessageLabs®, a company that provides e-mail security, currently roughly 67% of all e-mail is spam, which is up from 63% just before the CAN-SPAM act took effect in January 2004.  Since 2004, the level of spam has varied with an all time high of 94% of all e-mail in July 2004 and moderate declines for short periods of time after high profile legal actions. 

The Spamhaus Project, an organization that tracks spam worldwide, still ranks the United States as having the largest spam e-mail problem.  Approximately 132 of the top 200 worldwide spammers are in the United States.  Moreover, spammers seem to care little about laws considering a full 65% of spam is sent by zombie computers, home and business computers spammers have taken over to send spam, in violation of laws other than the CAN-SPAM Act. 

The bottom line is that so far the CAN-SPAM Act has only been meaningful to those few spammers that have been prosecuted and legitimate businesses trying to comply with the Act.  Compliance by lawyers avoids possibility, albeit remote, of  prosecution and shows your clients that you too care about reducing spam in their inbox.

Do Not Assume You Do Not Send Spam
Often lawyers send past, current, and prospective clients e-mails that do not pertain to any particular ongoing matter.  These e-mails range from newsletters to more personalized notes.  Practically speaking, the less personalized and immediately relevant the message, the more likely it is going to be discarded as junk.

Do not assume that the relatively small number of e-mails you send or your relationship with the e-mail recipient exempts you from compliance with the CAN-SPAM Act.  The CAN-SPAM Act does not regulate unsolicited bulk e-mail, but instead “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service. . . .”  Even one nonconforming e-mail can violate the Act.  Furthermore, your relationship to the e-mail recipient is generally irrelevant.  Finally, e-mails need not be entirely commercial advertisements to be covered under the Act.
      
My E-mails Are Not Advertisements, Are They?
Attorneys often forget that aside from a few friendships we forge with certain clients and colleagues, the e-mails we send outside the firm are part of doing business.  Our newsletters, seminars, invitations to lunch, and casual communications are at heart advertisements for our legal practices.     

Consequently, it should not be surprising that your benevolent newsletter is not automatically outside the scope of the Act.  In March 2005, 16 C.F.R. 316 took effect regarding what constituted having a “primary purpose” to advertise or promote products or services.  In its notice of the final rule, the FTC specifically stated it would not create a blanket exception for newsletters or other types of arguably informational e-mails.

The new FTC regulations break e-mails regulated by the Act into three categories: 

(1) E-mails that are entirely commercial advertisements;
(2) E-mails that contain both commercial advertisements and “transactional or relationship” content as defined by the Act and the Regulations; and
(3)  E-mails that contain both commercial advertisements and other content that is not “transactional or relationship” content.

Law firms typically send all three of these types of e-mails; therefore, attorneys should be aware of the standards under each category.   

E-mails That Are Entirely Commercial Advertisements
Occasionally, a law firm will send clients an announcement stating a new practice group was formed, a new person has joined the firm, the website has been redesigned, or a new service has been created.  The entire purpose of these e-mails is to advertise the commercial services of the firm.  If an e-mail contains nothing but such advertisements, it is subject to the requirements of the Act.

E-mails That Contain Both Commercial Advertisements and “Transactional or Relationship” Content
Attorneys will sometimes send a client a billing statement or other information about an ongoing project in an e-mail message.  These e-mails are considered “transactional or relationship” e-mails under the act and are not subject to its requirements.  If an attorney combines the “transactional or relationship” information with advertisements such as those mentioned above, the Regulations require a “primary purpose analysis.”  The e-mail is determined to have a primary commercial advertisement purpose if:

(1) The recipient would reasonably interpret the subject line to indicate the message was a commercial advertisement (the act prohibits deceptive subject lines, so you cannot hide the commercial content); or
(2) The “transactional or relationship” information is not in whole or substantial part at the beginning of the message.

Attorney’s wishing to avoid the CAN-SPAM Act requirements should therefore make sure their “transactional or relationship” information is displayed at the beginning of the message and that the subject lines mentions, but avoids highlighting, any commercial advertisement.  For example, if your department has just hired a new attorney, the next time you e-mail a client some work product you might want to mention that your department has acquired new expertise.  The subject line of that e-mail could state “Plug for Our Newest Attorney and CC of Letter to Opposing Counsel” or it could say “CC of Letter to Opposing Counsel and Introduction to John Doe.”  Both of these subject lines are accurate, but the latter is much more likely to avoid regulation under the CAN-SPAM Act. 

E-mails That Contain Both Commercial Advertisements and Other Content That Is Not “Transactional or Relationship” Content
Newsletters are in the final, most complicated category of e-mails potentially covered under the CAN-SPAM Act.  Newsletters, for example, not only provide useful information, they also tend to have advertising slogans, graphics, contact information, and statements such as “Contact us if you have any questions.”

The e-mail is determined to have a primary commercial advertisement purpose in such mixed-purpose e-mails if:  

(1) The recipient would reasonably interpret the subject line to indicate the message was a commercial advertisement; or
(2) The recipient would reasonably interpret the body of the message to indicate the message was a commercial advertisement.

Factors to determine whether the body text is a commercial advertisement include:  placement of the commercial content in whole or in part at the beginning of the message; the proportion of the message that is advertisement; and how color, graphics, type size, and style are used to highlight the commercial content.

In sum, while most newsletter-type e-mails are arguably exempt, each mixed-message e-mail is subject to a rather loose set of criteria that each sender will have to evaluate before sending the message. 
   
Before You Hit Send
Now that you have either figured out your e-mail is covered under the CAN-SPAM Act, or, more likely, you cannot tell, you will be pleased to know that the Act’s requirements are minimal. 

Here is a checklist of questions to consider before you send your message (note that some of these items, particularly the opt out timing and postal address requirement are under review by the FTC):

• Does your subject line accurately reflect the contents of the message?
• Is your header information, including the “FROM:” line, accurate?
• Does your E-mail display a functioning return address or other internet-based mechanism for opting out of future E-mails?
• Does your E-mail contain a notice that the recipient may opt-out of future E-mails?
• Do you have a system in place that for processing opt-out requests that can stay active for at least 30 days and will remove those that have opted-out from receiving future e-mails more than 10 days after their request?
• Does your E-mail contain an identification of the e-mail as an advertisement or solicitation?
• Does your E-mail contain a valid postal address for your company?

You probably already comply with nearly all of the Act’s requirements.  In fact, many lawyers conscious of the Act simply find it easier to run through this checklist for every questionable e-mail rather than bother with the FTC’s somewhat complicated and imprecise standards.
 
A Word On Spam Filters
Currently, the only way  you or your clients can combat spam effectively is to use a spam filter.  Attorneys should be wary of spam filters that block all spam before it reaches their inbox.  Some lawyers have reported that important messages, such as Electronic Case Filing Messages from the courts have been blocked by their filters.  The best way to reduce the chance of losing valuable e-mail is to filter spam into a separate folder and periodically quickly review the contents of that folder before deleting the spam.

Attorneys should also keep in mind that their e-mail messages may be blocked by their client’s spam filters.  Some systems will automatically block bulk messages or outside messages where the recipient is blind carbon copied (BCC’d).  The best marketing practice is to always follow-up such e-mails with a personal call or to send the newsletter-type e-mail directly from you, with a personalized note, to each important recipient one at a time.  

Most importantly, to avoid being a part of your client’s spam problem, just remember the golden rule:  Do unto others as you would have them do unto you.