Florida Email Marketing: Is it Legal?

Reaching a person’s inbox is big business and the lines between spam and legitimate email marketing can sometimes get blurred, leaving many violations left unenforced and, sometimes, spam email lawsuits. 

A 2012 analysis on the industry showed spam brings about $200 million a year in revenue but costs consumers and business around $20 billion.

The sheer volume alone is overwhelming. Cisco Systems reports some 195 billion spam emails were sent globally in October, making up about 85% of all messages sent during the month.

Email Marketing and Spam

Before the turn of the new century and before everyone had an email account, most people regarded spam as a canned meat product. In 1998, the Oxford dictionary added the term to mean junk email, where it’s currently defined as a noun and a verb. 

The Dungeons and Dragons community and a popular Monty Python sketch inspired the use of spam as meaning unwanted marketing email, according to Digital Trends.

In the early days of the internet, email marketing was even more unregulated than it is now but the risks have grown more dangerous. What was once pesky advertisements could now be a malicious link to things like ransomware attacks — something the FBI is currently warning hospitals about now.

By using deceptive messages, “phishing” emails trick recipients into either sharing their personal information or clicking on malware links. In some cases, phishing email senders may pose as a government agency or other trusted source which tricks recipients into providing login information or personal data. In other cases, these emails have a suspicious link or attachment. Once clicked upon this link infects a computer or system with malware – allowing criminals access to sensitive information.

Phishing schemes have become increasingly common for cybercriminals attempting to hack large corporations such as hospitals. These criminals may target employee emails, trick employees into clicking on links from phishing emails, and use that access to implant malware on sensitive systems of payment information or other data.

Spam and criminal email marketing remains a threat to this day. About a fifth of all breaches in the last year have come about from email exposure, according to Verizon’s latest data security breach report for 2020.

Is Marketing Email Legal? 

The growing threat had lawmakers creating email marketing laws as early as the 1990s. In Florida, legislators passed the Electronic Mail Communications Act in 1996, prohibiting email marketing using deceptive or false practices. 

Email marketers are essentially allowed to send anything with this law, critics say, as long as the email doesn’t include false or misleading subject lines, fake sales, email headers, or otherwise hold deceptive information or hold malicious software.

Florida email marketing restrictions provide protections to consumers in certain situations. Emails covered by the law must have been sent for commercial or business purposes and must have been unsolicited and/or not from a sender that the recipient has had a transaction or prior business relationship with. These restrictions apply to all emails sent from a Florida computer or received by a Florida resident.

Florida consumers can file a complaint through the state’s Attorney General website, which is entered into a database for enforcement. Although consumers will receive an automatic reply confirming receipt, the office says due to the amount they receive, filers should not expect a personal reply. 

Instead, Florida’s attorney general advises consumers who’ve filed a complaint to keep an eye on the office’s website for alerts and developments. 

Feds Take Action

Washington got involved with the fight against spam and bad faith email marketing when the Federal Trade Commission adopted the CAN-SPAM Act in 2003.

The act, which stands for “Controlling the Assault of Non-Solicited Pornography And Marketing,” was intended to set up rules for commercial email marketing, allows for penalties and requires an ability to opt-out. It also created a way for consumers to file a complaint. 

The CAN-SPAM Act does not just apply to bulk email, either. Email marketers can be in violation with electronic messages that promote or advertise a product or service, so digital marketers of all kinds are expected to follow the law. 

Each violation can be subject to a $43,280 fine. The CAN-SPAM Act requires email marketers to:

• Not use false or misleading header information.
• Not use deceptive subject lines.
• Identify the message as an ad.
• Tell recipients where the sender is located.
• Tell recipients how to opt out of receiving future email from the sender.
• Honor opt-out requests promptly.

The federal government’s first criminal case alleging violations of these laws began in 2005 when prosecutors arrested 18-year-old Anthony Greco at the Los Angeles airport. 

Prosecutors charged Greco of spamming MySpace accounts with 1.5 million instant messages about cheap mortgages and pornography promotions.

Prosecutors posed as MySpace executives and lured Anthony Greco to fly out from his upstate New York home to Los Angeles at the time, under a ruse he was about to leverage a deal with the now defunct social media company. 

Greco eventually pleaded guilty and was sentenced in a closed session of federal court.

Email Marketing Law Pushback

In 2004, a year after the FTC passed the CAN-SPAM Act, Microsoft’s Bill Gates predicted the world’s spam scourge would be gone in two years. In reality, the business has only grown.

Email marketing advocates and counsel representing consumers feel these laws only partially address the problem. 

Critics called the federal law the “you can spam law” because it didn’t initially include a national do not email list similar to the National Do Not Call Registry. Others said these laws are rarely enforced. Krebs Security analysts called the CAN SPAM Act “a travesty that was foisted upon the American people by a small handful of powerful companies, most notably AOL and Microsoft, and by their obedient lackeys in Congress.”

Stopping Spam and Unwanted Marketing Emails 

For consumers in Florida, Top Class Actions has resources to help with filing a complaint. 

Floridians can also file a complaint directly through the attorney general website but a claim must fit specific parameters.

According to the Florida AG’s website, complaints are entered into the state’s SPAM database. They may then be used to prompt or support enforcement action by the attorney general.

Unfortunately, consumers may not know if their complaint is followed up on. Due to a large influx of complaint received, the Office of the Attorney General is unable to personally respond to each claim. Taking legal action may be a hands on way to take action against email spam.

Many anti-spam services exist out there, as well. The Spamhaus Project works to track known spammers in an effort to expose them, but experts say spammers adapt.

Adam Levin, former director of the New Jersey Division of Consumer Affairs and author or Swiped, says for better or worse, unwanted marketing email are a fact of modern life. 

“We might once have hoped to protect ourselves from hackers with airtight passwords and aggressive spam filters, and those are good ideas as far as they go,” he says in Swiped. “But with the breaches of huge organizations like Target, AshleyMadison.com, JPMorgan Chase, Sony, Anthem, and even the US Office of Personnel Management, more than a billion personal records have already been stolen, and chances are good that you’re already in harm’s way.”