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www.ASPonline.com
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ASP Forum
The California Anti-Spam Law
California recently enacted a tough new anti-spam law that permits only "opt-in" e-mail messages. The law, which
goes into effect on Jan. 1, is intended to reduce commercial spam. However, some
legal experts believe that any vendor messages, including customer satisfaction
surveys and support alerts, are also covered by this law.
To see how support organizations plan to deal with this new law, the ASP conducted
a flash survey of members and other support professionals. So far, we've collected
responses from 90 companies; we'll update the results as more data and comments
come in.
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Here's what we found:
1. Surprisingly, 39% of our respondents use e-mail only to answer individual
support questions; apparently, these organizations never proactively send out
satisfaction surveys, bug alerts, or newsletters. Clearly, this approach will
completely satisfy the anti-spam advocates. But is it a good model for
providing helpful support to customers?
2. A substantial segment of companies, 23%, have already collected "explicit
opt-in permission" from customers, so they're in the clear, too. Another 11%
are in the process of collecting opt-in permission. And another 3% of
respondents plan to stop sending unsolicited e-mail until the legal dust
clears.
3. Another good-sized segment, representing 21% of respondents, plans to keep
sending unsolicited support e-mail until there's "definite evidence" that the
California law applies to them. Several of these respondents point out that,
at least in theory, the law exempts mass e-mail when a business relationship
exists between the two parties. However, only 2% of respondents seem to have
obtained a formal opinion on this question from outside counsel or senior
management.
We also collected a wealth of interesting comments on the new anti-spam law:
"We aren't located in California. We don't spam. We encourage our customers not to
send spam. We hate spam as much as anyone, but if this law says that any unsolicited
email sent to a paying customer is spam, then I'd suggest California just come after
us right now. I'd love to see them come after our little company in Montana that is
simply trying to take proper care of its customers by notifying them of a new release,
mailing our weekly usability tips or checking in on support quality. They have no
idea what they are in for."
"We are still debating this issue. The law clearly indicates a "business relationship"
is an allowable exception for sending customers an email. But, internally the
definition of business relationship is up for grabs. We have an opt-out policy
already and about two people per week select that option already. We also don't force
email on those who have spam filters by going to the designated site to enable the
email address. So, we still don't have a solution for this law and the time is
getting short."
"We use a double opt-in subscription method for our tech support newsletter and
critical email announcements. Subscribers are required to verify their subscription;
only customers or employees who confirm their subscription by email will receive the
newsletter and announcements.
"We made decision approximately a year ago to self-impose an opt-in only policy on
all company email to customers. This included our customer satisfaction survey. As a
result we have seen a significant decline in responses and are continuously
struggling with having enough responses to maintain statistical significance."
"The vast bulk of our email interactions with customers are replies to individual
customer requests or to announcement lists to which customers subscribe.
"The only category of emails we do send out are targeted emails about specific
software releases (usually just sent to customers on a specific operating system who
downloaded a specific release which is affected by an issue) that customers have
downloaded for which we have a critical service issue. We don't intend to stop
sending emails in this category until such time it becomes clear this is an issue.
We are also in Canada so I'm not sure how this new law affects us."
"Unfortunately, I wasn't aware of this being a done deal. Good thing is that it is
our standard practice to ask customers to send in an email requesting to be added on
to our service emails so I don't see issue with my particular organization."
"Where this law would have the most effect for us would be any sales solicitation
such as emailing newsletters."
"We collect emails from our customers up front. If any of our customers want to be
taken off our list, we remove them. However, to date, our mailings have been
technical in nature and only on occasion (once or twice a year) does a contact ask
to be taken off."
"We let customers register for product support, which includes one email a month and
any alert type emails. At anytime, the customer can request to be removed from this
list. Haven't heard about this law, so not sure how it really affects us!"
"Our legal staff is researching the issue now."
"I recently attended a presentation on the topic of spam and the changing legal
environment. The panel recognized the changes expected to emerge from the
forthcoming California law, and felt that even if it is delayed the law was moving
that way, so email users would be well advised to act as if the law would be
effective, or at least start moving in that direction. Specifically, they
recommended that practitioners freshen their lists--if they have not have contact in
the last 60 days--by asking for opt-in permission. There was some discussion about
the grey areas of the California statute, and of particular relevance to the subject
of your survey, one grey area being the definition of existing business
relationships.
"Incidentally (and ironically from my perspective), the panel, which included a
representative from the Washington Attorney General's office and other lawyers
experienced in this area, failed to recognize that the California law is, in some
respects, only attempting to follow the same practices as have been law in Europe
for some time. They were more concerned about spam being sourced outside the US than
any issues facing US companies trying to reach people in other countries via email."
"We had all of our customer sign a waiver that it was okay to survey them via e-mail."
"Our customers are in a tight, ongoing relationship us, and they pay monthly dues
for participation. Part of the agreement with our company is that we have complete
dialog in both directions, so this will never be an issue with our customers.
"Our recruiting department, however, has an entirely different problem, and will be
using an opt-in service to build the subscribership to our weekly estate planning
legal alert emails."
"We do virtually no soliciting of support services other than notices of pending
revisions and available upgrades covered under our software maintenance agreement.
I wonder if having a current SMA would exempt us from the restrictions this law.
Here's an idea: let's write permission to contact them as a standard clause in all
future SMAs."
"For some time we have only surveyed customers who had explicitly opted in. We did
have the benefit of advanced warning (EU legislation) and used the time to determine
if differences existed between the opt-in vs. opt-out populations."
"We will, as always, take a very conservative approach and likely suspend, but are
pretty confident that this law does not apply our mailings... TBD!"
"The only exception to our opt-policy is End of Life Notifications, which we send to
all customers regardless of whether they've opted in or out (legal requirement)."
"We are taking this law seriously. Legal counsel has advised accordingly."
"The law appears to include an exemption for businesses that have a relationship with
individuals and clearly include unsubscribe instructions in their e-mails (both of
which we do). We're verifying with our legal counsel. If so, we'll add more specific,
detailed information about our e-mail policy to our privacy policy and our maintenance
terms and conditions pending his review.
"For example: We communicate with software users via weekly e-mail technical bulletins
with the latest product news and tips to help them use our software to its fullest:
The User's Edge for Raiser's Edge users, The Ledger for Accounting for Nonprofits and
Financial Edge users, and Academically Speaking for Education Administration users. We
also periodically e-mail satisfaction surveys. We depend on them to gather feedback
about our products and services so we can better meet their needs.
"Subscription is a maintenance benefit. We encourage every software user to review our
technical bulletins regularly and participate in our surveys. When they or we add
software users at their organization to our records, they are automatically subscribed
to the technical bulletin for the software they use. We are committed to protecting
their privacy and do not sell or distribute any e-mail addresses. They can unsubscribe
at any time by clicking a link in each issue or by visiting a Web site.
"If not, we'll ask all of our support customers for opt-in permission, and we won't
send e-mail to those who decline."
"We believe the law does not apply for email to other parties with whom an established
business relationship exists.Our email is technical information only (not sales-related)
sent only to people who have purchased our product. We provide both a simple opt-out
"reply" option and a click through option with every mail.
"I think this is something that is needed though it makes it difficult to get in touch
legitimately with clients. Spam is killing our ability to sell via the internet, so it
needs to be controlled. Everything I do to date is through a request, so I'm not
sending unsolicited emails now. But I think some of my ordinary emails could get hit
with a screen of this type."
"We are a vertical niche software company and don't do mass emails, so we do not expect
this law to have a negative impact on our business in California."
"Since our clients have voluntarily given us their email addresses, we consider them
"opted-in" already."
"We only send out email in response to support requests or to survey a customer after a
support request has been closed. Therefore, the people we contact "have a business
relationship" with us."
"Our customer satisfaction surveys are sent in regards to very specific customer
requests--i.e. we are not asking "how are we doing?", but "how did we do on case #123?".
As such, we see our surveys as being compliant with the "Opt in" requirement of the new
California laws. This is, however, under review by our lawyers."
"We have a definite business relationship with the people on our e-mail list: They're
our customers. What worries me, however, is that people often don't remember that this
relationship exists. I remember when Jeff Bezos sent out a mass e-mail offer to people
who had bought books from Amazon, and a bunch of them complained that hew was invading
their privacy. We've also had customers complain to our ISP about our e-mail alerts,
and the ISP has a typical knee-jerk "guilty until proven innocent" approach. Getting
these cases resolved has always been a hassle, and I can only imagine the situation
when the class-action lawyers get involved. They will, too."
[Any other comments? Send an email to membership director Jane Farber at
jfarber@asponline.com,
and we'll post your feedback.]
A Few Useful Links:
The text of the law:
http://info.sen.ca.gov/pub/bill/sen/sb_0151-0200/sb_186_bill_20030911_enrolled.html
A legal expert:
http://www.ivanhoffman.com/antispam.html
Press commentary:
http://www.usatoday.com/money/industries/technology/2003-09-24-spam_x.htm
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