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Experts: National antispam law might benefit marketers

As unbelievable as it sounds, the "can spam" measure might be a blessing to marketers coping with much tougher state laws.

In the surprise of no one, President Bush on Tuesday signed the "can spam" act, a measure that, depending who you talk to, will either stem or spur the flow of commercial e-mail.

The measure will take effect Jan. 1 and place restrictions on the e-mail that businesses send. The law bans misleading subject lines, particularly those that are sexually explicit, as well as misleading senders and headers. It also gives the Federal Trade Commission the authority to set up a "do not spam" list similar to the recently enacted "do not call" list.

However, the law does not require that consumers opt in for e-mail, as will a California law scheduled to take effect Jan. 1. Rather, "can spam" only forces businesses to give consumers the ability to opt out. It also denies consumers the ability to sue spammers.

Despite politicians' claims that "can spam" protects consumers, Elana Anderson, a senior analyst with Cambridge, Mass.-based Forrester Research, said the law effectively benefits marketers more than the end user.

"Is it going to impact the volume of spam? I think the answer is no," Anderson said. "Spammers are moving offshore, and it's very hard to track them down. This legislation certainly doesn't solve that issue."

Indeed, much of the criticism leveled at "can spam" has focused on the lack of enforcement overseas, where much of the most pervasive and bothersome e-mail originates. The Nigerian prince scams, the Viagra offers and the pornography pitches will move offshore, if they haven't already, critics say.

Additionally, the federal law trumps state laws aimed at curbing spam, many of which have tighter restrictions. By rendering the myriad state laws ineffective, it gives marketers a standard set of rules to follow. That's why Anderson does not expect the same sort of court challenges that marketers lodged with "do not call."

Issues with the federal spam act do not stop there. Timothy Murris, president of the Federal Trade Commission, has said that enforcing the law, levying fines and creating a "do not spam" list will be difficult.

"We will do an in-depth study of whether such a ['do not spam'] registry is technologically feasible, whether it will be effective and how much it would cost," Murris said in an online chat Tuesday hosted by the White House's Web site. "I have previously expressed reservations about the registry because our studies have shown that almost all spammers are already violating various laws. Most telemarketers are legitimate businesses. Because most spammers are not legitimate, the attractiveness of a 'do not spam' registry is in doubt."

In November, the National Association of Attorneys General urged Congress not to pass "can spam" because the bill "creates so many loopholes, exceptions and high standards of proof, that it provides minimal consumer protections and creates too many burdens for effective enforcement."

Because "can spam" does not limit non-fraudulent spam, critics suggest it might actually increase the amount of commercial e-mail flooding inboxes.

In the final analysis, there won't be much change for consumers and Internet service providers, said Adam Sarner, an analyst with Stamford, Conn.-based Gartner Inc. Vendors of spam-blocking software might find the legislation a benefit, and e-mail marketers get a mixed bag, he said. While a standard set of requirements is easier to follow, marketers must now get more creative with permission-based e-mails.

"Even if you follow every law, if your customers hate you, they won't buy from you," Sarner said. "If you take the 'opt out' approach, you're basically killing the channel, and you're no different from spam."

Gartner predicts that in 2005, 60 billion e-mails will be sent each day, and that, of those, 60% will be spam. With so many messages flooding the Web, marketers will find it tough to get their messages to rise above the noise. Focusing on personalization and segmenting campaigns will help, Sarner suggested.

Already, many marketing departments in larger companies have realized that massive e-mail blasts are not effective, and they're prepared to invest in new marketing initiatives. The "can spam" law will have little effect on the Fortune 1000, said Steve Schultz, senior product manager with San Mateo, Calif.-based E.piphany Inc., a marketing automation software specialist. He said that many businesses have turned to more targeted, event-driven campaigns.

"They don't want to get the label of being a spammer," Schultz said.


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