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Anti-Spam Law Impacts Legitimate e-Mail

By Michael F. Consedine

Consider this hypothetical: Mary, a partner with P.J. Goldmorg & Co., a prominent Wall Street Investment Banking Firm, meets George, the CEO of a small biotech company, at a conference. George, who is not a client of P.J. Goldmorg's, mentions during conference that his company is considering going public. The two exchange business cards and go on their way. When Mary gets back to her office she sends George a short e-mail that says only the following: “George, it was a pleasure meeting you at the conference. Our firm provides an array of financial advisory services and I think we could be of tremendous value to you in preparing for your public offering. Attached is some material describing our practice. I look forward to hearing you soon. Mary” As soon as she hits “send,” Mary has just violated the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act).

Not possible, you think. How could such a simple (and very common) business related e-mail violate a law that, at least by its title, deals with only “spam.” Despite its clever name, the recently enacted CAN-SPAM Act, which became effective on Jan. 1, 2004, does not in fact prohibit “spam.” What the law does do is regulate “commercial e-mail,” which is defined broadly to include even the type of e-mail that Mary sent to George. Accordingly, the legal department of every business that uses e-mail should be advising its employees to take immediate steps to comply with the Act, as violations carry stiff penalties.

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