January/February 2004

Spam -- Chopped Ham No More! Nonprofits Need to Pay Attention

by Senny Boone, Executive Director, Direct Marketing Association Nonprofit Federation

Imagine your donors sitting before their computers at home or at work. You hope they are paying attention to your communications and appeals for assistance. Your organization has painstakingly selected the email list and crafted a special message. The donor opens her email box and instead of reading your message, she wades through emails calling for weight loss plans, sex toys, bank offers and programs that promise to add muscle.

You are not alone if you fear that email marketing by legitimate organizations like yours is at risk due to spammers. Regulators at all levels of government have been discussing approaches to this problem for months. In response, President Bush recently signed a bill that outlaws many tactics used by spammers. The new law, however, is a mixed blessing for all who use the Internet to communicate.

The law, called the Can Spam Act (S. 877), outlaws some of the most annoying forms of spam and sets jail time and multi-million dollar fines for violations. The law took effect on January 1, 2004.

For nonprofit organizations, a pure, noncommercial email message sent to existing constituents -- without any sales pitch or products and services offered -- should escape scrutiny. But nonprofits are among the most creative users of the Internet, and more organizations are finding ways to add the Internet to their fundraising programs. Therefore, they should proceed with caution when selling event tickets or catalogue items, or when alerting constituents to a mail piece en route that may contain items for sale.

Several trade organizations, including the Direct Marketing Association (DMA), the American Association of Advertising Agencies and the Association of National Advertisers, applauded the new law since it establishes the first-ever national standard for commercial email and skirts the broad California anti-spam statute that would have jeopardized every email going into California. DMA's CEO, H. Robert Weintzen, pledged the industry's "complete support in helping to track down and put these people out of business for good." DMA recently began a cooperative effort with the FBI, known as Operation Slam Spam. To view a set of best practices from the organizations, visit http://www.ana.net/govt/what/10_14_03.cfm.

The groups, however, oppose a labeling requirement for advertisements and a provision in the law that would create a national "Do Not Email" registry. The groups argue that the new law will do nothing to curtail spam caused by fringe operators who, for the most part, already violate existing law.

Timothy Muris, the head of the Federal Trade Commission (FTC), admitted that stopping spam is virtually impossible; there is no magic bullet. Instead, the solution will require technology, self-help and enforcement. "We have already brought dozens of cases involving deceptive spam, and have many additional investigations underway. We are also working with agencies that have criminal enforcement authority."

Muris also has pointed out the difficulties in tracking down spammers, saying that the anonymity of the Internet makes spammers hard to find, and the only way to find the culprits is to track down the money trail -- from the consumer to the sellers and then to the spammers -- which can take months. And the cost of sending additional emails is virtually zero. "If a business makes an additional 10,000 phone calls or sends additional letters, it costs money. Unfortunately, the same is not true for sending an additional 10,000 spams."

Muris said that he has reservations about an email registry because FTC studies have shown that almost all spammers are already violating various laws, and are therefore unlikely to register. The FTC plans further studies about such a registry. Additionally, the FTC will report to Congress within 18 months if it determines that having an advertising label in the email subject line is feasible, especially since those at which this regulation is directed already flout the law.

With the ongoing war against spammers, it is important to pay attention to the spam issue and how it affects nonprofits. Here are a few things to keep in mind:

• The FTC will issue new regulations that could have an unintended effect on nonprofits, including a potential chilling effect on all forms of legitimate nonprofit communication as nonprofits cut back on their use of the Internet for fear of sanctions.
  
• This is the first national regulation for email; its success or failure will set the tone for further government action.
  
• Spam messages clutter donors' email boxes, detract from nonprofit messages and may result in less overall Internet viewing.
  
• Since spam is ubiquitous, most people recognize it as a primarily commercial act. However, the public is easily angered and may begin to view nonprofit messages in the same fashion, without distinguishing between legitimate nonprofit messages and commercial spam messages.
  
• It is unclear what new prohibitions will result from the implementation of the new law -- tread cautiously if you are unsure whether your message could be considered spam.

The Direct Marketing Association Nonprofit Federation (www.the-dma.org/nonprofitfederation) is available to answer questions about spam and will continue to monitor the issue closely. Use of the Internet by legitimate nonprofit organizations is one of the greatest recent developments for fundraising and outreach, leading to reduced staff time, innovation and unprecedented communication capabilities. It is up to all of us to ensure that spammers do not ruin the Internet's potential for everyone.

Senny Boone has been executive director of the DMA Nonprofit Federation (DMANF) since September of 2002. Prior to heading the DMANF, Boone was Vice President and General Counsel at the National Newspaper Association. Boone is a graduate of Catholic University's Columbus School of Law and Temple University's School of Journalism.