Every legitimate marketer wants to comply with Can Spam, the new federal anti-spam law. However, many are unsure of the statute's details, because the Federal Trade Commission itself hasn't figured out the particulars yet.

“There are a number of unanswered questions in Can Spam, but marketers still have to comply with the law,” said Trevor Hughes, an attorney who is executive director of the Network Advertising Initiative's E-mail Service Provider Coalition. “It's very difficult for them to understand what they have to do,” added Hughes, who has testified before Congress and met with the FTC on spam.

Can Spam's do-not-e-mail registry provision has received much attention. But Congress does not require that the FTC implement a registry, only that it prepare a report on the efficacy of such a list in June. And while the FTC may implement a registry three months later, experts say other provisions that are already law are more worrisome to marketers.

The FTC is gathering information on these provisions through informal meetings with various stakeholders, including direct marketers and associations such as the E-mail Service Provider Coalition and the Direct Marketing Association, and through formal responses to requests for comment the FTC will publish in the Federal Register.

One area of confusion is Can Spam's opt-out provision. It states that e-mail messages must display clear and conspicuous directions on how to opt out of that marketer's e-mail. The sender has 10 business days to unsubscribe anyone who asks to be removed from a mailing list.

Say a marketer rents a list from an e-mail file owner. The current practice is for the list owner to broadcast the campaign (e-mail files don't physically change hands), and then receive a number of unsubscribes back from that broadcast. The law implies that the marketer has to keep a file of unsubscribes, so the owner sends the file back. He does this for every marketer who rents from him.

Then the next time the marketer transmits a campaign, he must scrub his unsubscribes against that rental file.

Marketers wonder whether the unsubscribes information be shared, and if the owner needs to establish a global suppression file.

“It's time-consuming and difficult and creates the possibility of having to integrate several different software platforms,” said Josh Baer, CEO of Unsub Central, a new type of service bureau that has sprung up to provide impartial, secure file scrubbing.

“This sort of bonded warehouse akin to those in direct mail has not existed in e-mail before,” Hughes said. “It's created a sort of cottage industry of e-mail Switzerlands.”

Here's another opt-out conundrum: What if the e-mail promotion suggests that the recipient forward the message to a friend? Is the marketer then responsible to honor the friend's opt out?

“If it's passed along voluntarily by the original recipient, then the marketer shouldn't be liable under Can Spam,” said Quinn Jalli, an attorney who is director of privacy and ISP relations at e-mail marketing firm Digital Impact. “But if the marketer offers an incentive for the recipient to pass along the message, that might be a different story.”

Don't ask the FTC for help It's still scratching its head over such particulars.

The agency isn't mandated by Congress to issue rule-making on this provision, but it has the authority to do so if it wishes, according to Katie Harrington-McBride, staff attorney in the FTC's division of marketing practices. The FTC will probably publish a request for comment on the opt-out aspect of the law in the Federal Register this month, she said. The FTC can also, if it wishes, modify the 10-day time frame marketers have to unsubscribe recipients from their e-mail.

Related to the dilemma of who is responsible for unsubscribes is the question of what the primary purpose of commercial e-mail is.

Suppose a marketer sends out an e-mail newsletter with two ads in it. Are the ads defined as commercial e-mail, or is just the e-newsletter defined as such? Are all the parties responsible for opt-out requests?

“What makes sense is for the unsubscribes to go to the list owner, not the advertiser,” Jalli said.

What about a major daily newspaper's daily e-mail alert containing one ad sponsorship? “If the FTC says that anything with one ad in it is a commercial e-mail, we'll push back on that,” Jalli said.

The FTC is required to create a rule providing relevant criteria to help determine the primary purpose of a commercial e-mail by next December, said Harrington-McBride. A Federal Register notice asking for comment on this FTC-proposed rule is set for this month.

Can Spam requires the sender to include “a valid physical postal address” in each e-mail. Whose physical address should you publish — the sender's or the list owner's? Also, if you run a home-based business, you may prefer to use a post office box. That would be acceptable in the offline world, but is it permissible online?

A report is due in September on the efficacy of offering consumers a bounty for supplying information leading to a spammer's conviction. The FTC may implement the plan by January 2005. Bounty hunters could pocket not less than 20% of the total civil penalty collected. That could total up to $2 million. Jalli said: “If this provision becomes a reality, it's going to look like Utah,” in which nearly 1,500 lawsuits were filed under a state anti-spam law that allowed citizens to sue spammers.

The reasons against this are well-trodden. “The three horsemen of death in the do-not-e-mail list are security, cost and effectiveness,” Hughes said.

First, the technology doesn't exist to keep spammers from hacking into the file.

Second, if a no-spam file grew to the size of the federal do-not-call list (50 million), and with each e-mail address churning every six months, scrubbing the file would be difficult. “The list might get so huge that an honest marketer couldn't use it,” said Jerry Cerasale, DMA vice president for government affairs.

Finally, though no one has studied what complying with the list might cost, if catalogs have to run their house files against a registry, “that could lead to an entire new level of cost,” Cerasale noted.