The quarterly publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/43128
Are You Spamming Your Clients? • If the message is intended as a vehicle to sell your firm's services, you must indicate clearly that the message is an advertisement. • The message must include the physical address of the location where your message originated. • The message must include a means of opting out or unsubscribing. • Opt-outs and unsubscribe requests must be honored within 10 business days. • Even if you hire a third party to send your messages, you are still liable under the act to ensure that your messages are compliant. Spam According to ISPs and Anti-Spam Vendors ISPs and corporations install software or contract with third parties to block spam. On the corporate level, we're familiar with Postini, Spam Assassin and IronPort. On a personal level, most anti-virus software from companies such as Symantec and McAfee offer spam filters, and if you use an online email program such as Gmail, Hotmail or Yahoo, a spam filter is automatically included. How do these various systems determine whether a message is spam? Each provider or program has a set of rules or tests that assigns a score for each test. If the cumulative scoring reaches a certain threshold, the message is classified as spam. The rules might look for inconsistencies in the header or specific key words and phrases within the message. When installed as a software program on your firm's email server, your firm will be able to set the threshold at levels that are appropriate for your firm's communications; if provided by an ISP, you might be able to designate, after receipt of the message, whether the sender is a spammer or not. You might not be able to avoid these filters — if your firm is reporting on regulations concerning "pornography," the mere inclusion of that word could trigger a filter. Avoiding the Blacklist Blacklisting occurs when an anti-spam service's spam score for your organization reaches an elevated level. At that point, the anti-spam company will block all messages to their clients from that particular sender. Your firm may or may not receive notification that this has happened. You might see an email bounceback that includes words like "your access to this mail system has been rejected due to the sending mail transport agent's poor reputation." Once that happens, your email administrator will need to contact the service that is blocking your mail to find out what triggered this. The resolution process can be lengthy — correcting each issue that contributed to your spam score — and the cooperation you receive from the anti-spam service — varies. If your messages are being blocked by anti-spam software on the recipient's email server, you can work with their IT department to determine what initiated the blockage. Another consideration regarding blacklisting is to determine from what domain your messages will be sent — your primary domain (www.lawfirm.com), a subdomain (http:// email.lawfirm.com) or a completely separate domain (www. lawfirm2.com). If you use your primary domain when sending messages, it is conceivable that your entire firm could be blacklisted, blocking all communication from your attorneys to their clients. However, sub- and separate domains might lead the recipient to believe they are being spammed. Consult with your IT department, as well as any anti-spam services to which your firm subscribes, to determine the solution that is best for your firm. Making the Whitelist Whitelisting, by contrast, is a certification signifying that messages from your firm have been tested and conform to certain standards. Whitelisting might be applied to a single email account or to the firm's domain. These standards could include: • Sending email from a dedicated IP address • Maintenance of low complaint rates at various anti- spam services • A double opt-in process before any emails are sent (a double opt-in requires the contact to confirm participation twice — once to indicate their general interest, and then a positive response when your firm indicates it has received the request to begin sending emails). State Bar Association Rules on Attorney Advertising Each state's bar association has rules that govern how attorneys and law firms may communicate with their clients and potential clients when sending messages not governed by attorney- client privilege. New York, Florida and Texas, in particular, have fairly specific requirements. For instance, you might be required to include the words "attorney advertising" in the subject line of each email. This, in turn, could result in the need to send several iterations of each communication, depending on the physical origin or destination of the message. You are encouraged to seek your attorneys' counsel on determining the appropriate means of complying with the bar associations that govern your attorneys' work. Peer to Peer the quarterly magazine of ILTA 75