Is David Plouffe Breaking The Law Promoting Health Care?

After speaking with political campaign email expert John Caldwell and receiving feedback from similar professional sources with deep experience in Anti-Spam legislation and affiliations with groups such as the Coalition Against Unsolicited Commercial Email(CAUCE), and the Messaging Anti-Abuse Network Working Group(MAAWG), I've been able to confirm that former Obama Campaign Manager, David Plouffe is engaged in specifically designated deceptive practices, which also appear to be illegal under the CAN-SPAM Act of 2003 using the barackobama.com domain name. This was done while assisting the Obama administration in promoting their current health care initiative through fundraising.

The email representing this deceptive campaign practice also includes an email allegedly from Obama himself below the original text. It can be seen here in full as a gif file.

From the CAN-SPAM Act of 2003.

(2) PROHIBITION OF DECEPTIVE SUBJECT HEADINGS.—It is unlawful for any person to initiate the transmission to a protected
computer of a commercial electronic mail message if such person has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that a subject heading of the message would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact15 USC 7704. VerDate 11-MAY-2000 15:26 Dec 24, 2003 Jkt 029139 PO 00187 Frm 00008 Fmt 6580 Sfmt 6581 E:\PUBLAW\PUBL187.108 SUEP PsN: PUBL187 PUBLIC LAW 108–187—DEC. 16, 2003 117 STAT. 2707 regarding the contents or subject matter of the message (consistent with the criteria used in enforcement of section 5 of the Federal Trade Commission Act (15 U.S.C. 45)).

Here is a straightforward rundown of the law's main provisions:

-- It bans false or misleading header information. Your email's "From," "To," and routing information – including the originating domain name and email address – must be accurate and identify the person who initiated the email.

-- It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.

And the language from the Act itself:

Sec 3; 16 A & B: (16) SENDER.— (A) IN GENERAL.—Except as provided in subparagraph (B), the term ‘‘sender’’, when used with respect to a commercial electronic mail message, means a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message. (B) SEPARATE LINES OF BUSINESS OR DIVISIONS.—If an entity operates through separate lines of business or divisions and holds itself out to the recipient throughout the message as that particular line of business or division rather than as the entity of which such line of business or division is a part, then the line of business or the division shall be treated as the sender of such message for purposes of this Act.

It's also important to note that such emails are always sent to subscribers using a broadcast tool and not a personal email account. Such tools do not employ the "FWD:" or "RE:" header on their own. It would need to be included as a manual typing of what is actually an original subject line. That is precisely one of the things the act was written to prevent.

The details: 

The subject heading in the offending email, likely sent to millions of individuals, contains the known and accepted email convention "RE:" used by all email programs to indicate a response to an email message received from an originator. Clearly that is not the case here and the "RE:" was inserted to give the receiver of the spam the false and misleading impression they were hearing back in regard to an email they themselves originally generated. This is a deceptive practice designed to increase the likelihood that any receiver will open and read the email.

True, there are exceptions to the CAN-SPAM Act for political, religious and other forms of communications. However, as well as being unclear if this an official party communication, I have been able to confirm that the emails in question were received by individuals not registered as Democrats. It is my understanding that that fact alone negates any exemption under existing law for political party communications.

Furthermore, the original email from Barack Obama and the second email in the fundraising campaign both originated from a single email address through an automated program using - info@barackobama.com. Consequently, there was no actual back and forth communication between two disparate sources to justify the "RE:" being included. It appears that the only way to achieve that without actually altering the subject line would have been for an email from Obama to Plouffe to have been openly CC'd to the presumed millions of potential donors on their list. Even if there was such an email using "BCC:," it would not automatically pick up what is likely millions of email addresses such a "BCC" list would have contained. Yet, it was those potential donors who received the deceptive "RE:" solicitation.

I believe this also ultimately fails to meet the standard that an email solicitation contain an accurate "From:" heading and return address, as well. The only way it might comply is if both Obama and Plouffe were sharing this same email address.

Certainly, Plouffe and mybarackobama.com are entitled to defend themselves under the law should any individual, or organization opt to file a formal complaint with the FTC before a final determination that they have indeed broken a law in promoting Obama's health care initiative can be made. But what can be stated and seems unequivocally clear by the facts is that Plouffe, his organization and by default, Barack Obama, seem to have no problem employing deceptive practices in pushing the effort to reform the American health care industry, as they would prefer - going so far as to employ Obama's own name in that deceptive effort.

Given that, and in light of ABC's already documented political bias as demonstrated by their significantly skewed campaign giving, there is now even more reason to question ABC's judgment in providing Obama with what appears to be a friendly platform to sell his program, while excluding a dissenting view, up to and including paid advertisement.

Add the above to the on going scandal involving the dismissal of several Inspectors General under suspicious circumstances and the already displayed willingness of this administration to more than fast track bad legislation to achieve their ends, precisely as they did with the stimulus package, Americans would be well advised to ask themselves if this new administration is really the one they want to entrust with the future of their personal and currently private health care options.

What's next in the budding scandal over President Obama's abrupt firing of Gerald Walpin, the inspector general of AmeriCorps?

An additional analysis of the CAN-SPAM Act.

The sender is prohibited from using false information and deceptive subject lines and must include a "from" line that accurately identifies the sender of the e-mail. The sender must clearly and conspicuously identify unsolicited commercial e-mail as an advertisement or solicitation.

As they say ... Developing.

Comments

[Rob Crawford]

Obama? Deceptive?

Only with his every breath.

[Mike2Cents]

Inspector Clouseau...stay on this.
Sounds like a huge crime has been committed here.
In the meantime, any thoughts on health care in this country?
Nothin' need fixin?

[Jim Durbin]

Dan,

Unfortunately there isn't much there, there. CAN-SPAM refers to commercial activity - the politicians specifically wrote political activity out of the law.

There's also the possibility that he wrote RE: as "regarding", instead of "Reply.

The best we can say is it's bad practice, but not illegal.

[John Caldwell]

Jim,

It's a misconception that the CAN-SPAM Act specifically states exemptions.

The assumption is that "political" messages are exempt because they do not meet the Act's definition of "commercial".

What people fail to realize is that Section 5 of the Act addresses non-commercial email messages as well, and specifically speaks to deception.

Typing RE in a subject line to save a few letters is a weak argument as it's commonly known that email clients automatically insert "RE:" when replying to a message.

A reasonable person can easily assume that the use of "RE:" in the subject line of a broadcast message is deceptive.

While the legality of deception by a political organization has yet to be challenged under the Act, it's pretty safe to say that deception in email messaging is always a bad practice.

[Dan Riehl]

Yes, I think there are plenty of points to debate - as with any law they write today, you need a team of lawyers to decipher it. That's why I was careful to say they couldn't be said to have comitted a crime without being heard, or used "appears to" in some cases. Ultimately, what I was shooting for was pointing out that these peple are no more or less noble than any bunch of political hacks, capable of tricks and scams. And that is one reason why I don't want them, or any politicians re-inventing health care, or over interfring in our lives, which they already do.

All points from knowledgeable people here - and I count you both on that score - are taken.

As I've said to John, the whole thing makes my eyes glaze over and I suspect I'm not alone. Thanks all!

[reo]

something needs fixin' in healthcare overhaul, obama needs to take the exclusion for congress out and everyone gets the insurance obama feels is perfect. obama and congress should not get better insurance as we are mandated managed health care HMO only. Health reform for the little people. The people who pay for their insurance get to eat cake.
Read the bill, you will not get to keep your insurace if you like it, if it is not a managed care plan obama approves of. But congress and obama will get to continue to go see any physician they choose, any care they need sans HMO. Their health insurance paid for by 200 million americans, they get the best.

Yes Obama is a crook and a liar. Watch what he does, not what he says! Bye Peasants. If healthcare reform goes through see you in long lines next to illegals for a xray.

[reo]

Obama Names David Plouffe to Head New Department of Spam

http://stanford.edu/group/stanfordflipside/cgi-bin/?p=1417

Hey this means obama okayed all spam by David. /sarcasm More like obama placed him head so they could spam all they want for all elections.