Can an ESP allow its users to use the ESP's physical address in marketing emails under CAN-SPAM?

Key findings

• Legal requirement: The CAN-SPAM Act clearly requires all commercial emails to include a valid physical postal address for the sender. This also applies to transactional emails.
• Ambiguity of "your": The precise interpretation of "your" physical address in CAN-SPAM is vague. It can mean a street address, a PO Box, or a private mailbox registered with a commercial mail receiving agency.
• Enforcement focus: Enforcement actions by the FTC or State Attorneys General are generally reserved for significant violations, such as false headers, deceptive practices, or complete absence of an unsubscribe mechanism, rather than minor technicalities about address ownership. Individuals cannot sue under CAN-SPAM for this type of violation.
• Common practice for small senders: ESPs often include default address data for their smaller clients to ensure compliance, especially for those operating from home and seeking to protect their privacy.

Key considerations

• Technical vs. practical compliance: While using an ESP's address might be a technical violation of the "your" clause, it rarely leads to prosecution due to low enforceability and the nature of the penalties, which are not designed for small-scale infringements.
• Risk assessment for ESPs: ESPs offering their address as a blanket solution may face aggregate reputation risks, even if direct legal action is unlikely. This practice could be seen as an indicator of less stringent compliance oversight.
• Business responsibility: Businesses should be fully informed about their obligations under CAN-SPAM, regardless of the ESP's advice, as the ultimate risk of non-compliance falls on the sender. This includes understanding if individual sales emails require CAN-SPAM compliance.
• Alternative solutions: For privacy-conscious senders, using a PO Box or a registered private mailbox service is a compliant and recommended alternative to using a personal home address or an ESP's address, as detailed by the FTC CAN-SPAM compliance guide.

Key opinions

• Legal ambiguity: Marketers frequently question the exact interpretation of the "your" requirement in CAN-SPAM, especially regarding whether an ESP's address suffices.
• Lack of enforcement: There's a common belief that authorities don't actively pursue small businesses for minor address violations, focusing instead on more significant spamming activities.
• Outdated regulation: Many feel CAN-SPAM is an old law that hasn't adapted to modern online business models, where many companies lack a physical office space.
• ESP responsibility: Marketers debate whether it is responsible for an ESP to advise clients to use the ESP's address, citing potential risks despite low enforcement.

Key considerations

• Informing businesses: Even with perceived low enforcement, it's crucial for businesses to be aware of CAN-SPAM requirements, including that commercial emails must include a postal address.
• Privacy vs. compliance: Small businesses, especially those operating from home, often seek ways to comply with the address rule without revealing personal information.
• Future of CAN-SPAM: There's a desire among marketers for the law to be revisited and modernized to better suit the current digital marketing landscape.
• Role of ESPs: The division of email deliverability responsibility between ESPs and businesses is key here, with ESPs often providing the means for compliance.

Key opinions

• Compliance is key: Despite perceived lax enforcement, experts underscore the importance of fulfilling the CAN-SPAM physical address requirement to maintain sender legitimacy.
• Purpose of the address: The core purpose of the address is transparency and a reliable contact for recipients, which an ESP's address might fulfill technically but lacks sender specificity.
• Reputation implications: ESPs allowing widespread use of their address could negatively impact their aggregate sender reputation if clients engage in problematic email practices.
• Focus on egregious violations: Legal enforcement bodies like the FTC typically target more severe violations such as deceptive practices and the absence of unsubscribe options, rather than minor address nuances.

Key considerations

• Sender authenticity: While an ESP's address may satisfy the letter of the law, using the actual business's address is considered better practice for establishing genuine sender identity and trust.
• Avoiding blocklists: Although not directly a blocklist trigger, non-compliance with fundamental requirements like a valid address can contribute to overall poor sender reputation and potentially lead to being listed on a blocklist.
• Evolving regulations: Experts note that CAN-SPAM is an older law, and while it has not been modernized for email, other communication laws, like those governing SMS, are far more stringent and allow for individual lawsuits.
• Global perspective: It is important to remember that commercial emails in the USA and Canada have specific address requirements, and these can vary by region, necessitating careful compliance.

Key findings

• Mandatory inclusion: All commercial electronic mail messages must contain the sender's valid physical postal address, as a core compliance element.
• Address types: The accepted forms of address include a current street address, a post office box registered with the U.S. Postal Service, or a private mailbox registered with a commercial mail receiving agency.
• Purpose: This requirement aims to establish transparency and trust, providing recipients with a reliable method to identify and contact the sender, especially concerning opt-out requests.
• Sender identification: The rule is part of broader requirements to ensure the sender's identity is accurate and not misleading, which includes headers and subject lines.

Key considerations

• Direct connection: The emphasis on "your" address suggests a direct link to the business or individual sending the email, rather than a third-party service, however loosely interpreted that may be.
• Avoid deceptive information: Beyond the physical address, the act also prohibits false or misleading header information and deceptive subject lines, underscoring the importance of overall email integrity.
• Consequences of non-compliance: Non-compliance with CAN-SPAM's various requirements, including the physical address, can lead to significant penalties, though specific enforcement patterns vary. Ensure your ESP helps maintain email authentication, as detailed in ESP capabilities essential for deliverability.
• Adaptability for online businesses: While the act was written before widespread internet business, the options for PO Boxes and private mailboxes provide legal avenues for businesses without a traditional physical office to comply, as highlighted in how to include a physical address in emails.