President Bush signed the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) on Dec. 16. Designed to regulate e-mail spam, the CAN-SPAM Act applies to all commercial electronic mail, including commercial e-mail sent by banks. The law was effective Jan. 1, 2004, just 16 days after the bill was signed into law.

Congress overwhelmingly approved the legislation determining, as a matter of public policy, that senders of commercial e-mail should not mislead recipients as to the source and content of e-mail, and that recipients should have a right to opt out of receiving commercial e-mail. Regardless of whether the CAN-SPAM Act cuts down on the amount of spam that piles up in everyone's e-mail box - and some critics believe the new law will actually increase the amount of spam sent - the act affects every bank that conducts any business through e-mail.

SUMMARY OF THE NEW LAW

The CAN-SPAM Act requires unsolicited commercial e-mail messages to be labeled as such -though no standard method is spelled out in the act - and to include opt-out instructions and the sender's physical address. The law further prohibits the use of deceptive subject lines and false headers in commercial messages. The act authorizes - but does not require - the FTC to establish a "do not e-mail" registry.

The Legal Department previously notified our members about the new law through a Legal Briefs newsletter distributed on Dec. 12, but expands upon its requirements here:

TO WHAT KIND OF E-MAIL DOES THE CAN-SPAM ACT APPLY?

The act only applies to "commercial electronic mail message(s)" defined as: any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet Web site operated for a commercial purpose.)

Please note that "primary purpose" is not defined in the act. Congress gave the FTC one year to develop regulations to further explain what "primary purpose" means under the act.

WHAT ARE THENEW REQUIREMENTS AND WHAT MUST OUR COMMERCIAL E-MAILS CONTAIN?

all commercial electronic mail, except the few in the categories discussed below, will have to comply with the following requirements:

First, senders must provide a notice and method to opt out in their commercial e-mails. All commercial e-mail must contain a functioning return e-mail address that:

* Is clearly and conspicuously displayed.

* A recipient can reply to in a method specified in the message requesting not to receive future commercial e-mails from the sender.

* Remains capable of receiving these messages for at least 30 days after the original message was transmitted.

It is illegal for senders to send commercial e-mail to a recipient within 10 days after the recipient has "opted out" unless the recipient subsequently affirmatively consents to receive further commercial e-mail from that sender.

Second, commercial messages must provide:

* Clear and conspicuous identification that the message is an advertisement or solicitation.

* Clear and conspicuous notice of the opt out opportunity.

* The sender's physical postal address.

Unfortunately, no language is suggested in the act to identify that a message is an advertisement or solicitation.

ARE THERE ANY KINDS OF E-MAIL TO WHICH THESE NEW REQUIREMENTS DO NOT APPLY?

These requirements do not apply to "transactional or relationship" messages defined in the act to cover the type of messages that: follow up on a commercial transaction that the recipient has previously agreed to, provide account statements, provide employment information and deliver goods or services where the recipient has agreed to such a transaction, among others.

There are numerous other provisions in the act, many of which should not be implicated under normal bank procedures. To view the entire CAN-SPAM Act, visit the U.S. Government Printing Office Web site at www.gpo access.gov/bills/ index .html and enter "S 877" in the search engine or visit www.spamlaws.com/ federal/108s877 enrolled.pdf.