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FTC Proposal Could Restrict Nonprofit Email

(May 3, 2004) AFP has responded to a request for preliminary comments by the Federal Trade Commissions (FTC) regarding a proposal to restrict the distribution of unsolicited commercial emails.

In 2003, President Bush signed the CAN-SPAM Act into law, and the FTC was given the responsibility of implementing the law's requirements.

The new law makes it unlawful to send unsolicited commercial emails unless the emails contain the following:

  1. A 'clear and conspicuous identification that the message is an advertisement or solicitation' (this does not necessarily have to appear in the email subject line);
  2. An ability to opt-out electronically from future emails; and
  3. A valid postal address of the sender.

These requirements are not necessary if the recipient of the email has already given affirmative consent for the sender to send such emails.

In its request for comments, the FTC specifically asks whether nonprofit organizations should be exempt from the proposal, which would restrict the distribution of unsolicited commercial emails. Because the law affects only emails of a commercial nature, most emails sent by a charity will be exempt from the requirements.

No Legislative Exemption for Nonprofits

In discussions with Capitol Hill staffers during development of the bill, it was clear that the bill was not directed at nonprofit organizations. However, the final version of the CAN-SPAM Act did not provide an exemption for email from nonprofit organizations.

The law is stricter than other privacy bills, requiring an organization to receive explicit permission from an individual before sending an email of a 'commercial nature.' Thus, a charity that has a pre-existing relationship with a donor might still need to receive the permission of the donor before sending an email regarding an event, product or service deemed to be of a commercial nature.

AFP submitted its comments to the FTC in April, arguing that the Commission does not have jurisdiction over nonprofits and therefore cannot apply the proposed rules to the nonprofit sector. In its reply, AFP noted the confusion that would arise should certain types of emails from nonprofits be subject to the rule and others be considered exempt. AFP also pointed to FTC's decision in the Do Not Call List, where it exempted nonprofits and for-profit fundraisers working for charities from having to comply with the List's requirements, as a precedent for the CAN-SPAM Act.

A response from the FTC is expected later this year. A copy of AFP's comments is below in the Attachments section.


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