Did Expedia violate the Can Spam Act? As a customer, I think so.

Has what started as a blog earlier today about what I thought was a baiting and switching e-mail from Expedia now blossomed into the travel site's potential violation of the Can Spam Act? Wrote one reader via email:

Surprisingly, you didn't mention that this is spam even though you opted out. 

Opted out? Being that I use Expedia to book my travel, it hadn't even occurred to me that Expedia might have sent me an unsolicted commercial e-mail or UCE. Technically, although most people consider UCE to be spam, it isn't legally considered spam (of the sort that could get a sender of UCEs fined or convicted) until until the sender of a UCE does so after the point at which the recipient has opt-out or otherwise elected not to receive such e-mail solicitations. Although I'm not sure how the reader would have known what my opt-out or opt-in status to Expedia was at the time he sent his e-mail, he is right. If, in my Expedia profile, I have not opted-in to any of Expedia's e-mail notifications (the equivalent of opting-out), then Expedia is clearly not only disrespecting me as a customer, I'm relatively certain it is also in violation of the Can Spam Act.  It's a federal offense. 

After receiving the first e-mail, I filed the to-do item (double check my Expedia e-mail preferences) in the back of my brain and went about focusing on publishing our story on Microsoft's Office Communications Server. Then, I went back to check on the comments that have rolled in today and there it was: a comment from the same person who wrote to me via e-mail saying:

I too received this reminder last week. I thought I might have accidentally opted in with my last reservation with them. I called the main number after checking my account which was set up to not receive any deals or offers. While waiting I scanned the email again for the words deal or offer. Didn't find them. The useless representative only suggested I email travel@customercare.expedia.com and request to be removed from the email list. In the email I asked if I could opt out and the automated response indicating that no one can reply from that address. I guess with careful wording, they can add to the growing spam problem.

Careful wording? Translated, is there a way for companies like Expedia to play with the wording in its special offer emails so that those emails get to fly below the radar of the Can Spam Act? I decided to look more deeply into this potential slight of hand. My first stop was my e-mail preference center on Expedia which looked like this:

He was right. For e-mail communications regarding any travel I was booking through Expedia, my profile is set for HTML e-mail vs. plain text. But in terms of information regarding "deals, special offers and information about my trips" (the coupon offer discussed in my earlier blog clearly qualifies), I am very clearly opted-out.

So, already, something is amiss. By e-mailing me about a $200 coupon it has for me (one that, as it turns out, is only good for four destinations), Expedia is clearly disrespecting my preferences as well as those of other customers.  But wait, it gets worse.

According to the Can Spam Act, unsolicited commercial e-mail must be clearly marked with, amongst other things, a means for unsubscribing.  So, I decided to go back to the original e-mail to see if there was even a way to unsubscribe. And that's where I found this fine print:

You are receiving this transactional email based on a recent purchase or account-related update on Expedia.com. You will receive this type of notification to communicate important information regarding purchases or updates to your Expedia.com account.

Now the plot thickens. Transactional e-mail?  By including this statement in its e-mail, Expedia appears to be saying that this is a different class of e-mail than your typical "deal, special offer, or information about my trips" (all of which I had opted out of). A quick Google search turned this bit of text up on a Federal Trade Commission Web page:

A "transactional or relationship message" – email that facilitates an agreed-upon transaction or updates a customer in an existing business relationship – may not contain false or misleading routing information, but otherwise is exempt from most provisions of the CAN-SPAM Act.

There it is. For whatever reasons, Expedia apparently believes that its e-mail qualifies as a transactional e-mail and is therefore exempt from the Can Spam Act. It's probably for this reason that e-mail is also void of any instructions or links for unsubscribing. So, is that it? Since Expedia sees its coupon offers as transactional e-mails, does that mean I'm stuck and that I must receive them from here until eternity?

I am currently awaiting a call back from Expedia to get the company's official position on why it thinks this. I can't imagine logic other than the one that takes place in some conference room where a group of delusional people actually convinced themselves that, by attaching a coupon to a special offer, the special offer now qualifies as a transactional e-mail that is exempt from the Can Spam Act.

There's no coupon in the e-mail, just a reminder that you have access to one. So maybe that's how Expedia does it. It loads everyone's account with a special coupon and then, Expedia thinks because they've loaded one into your account, it gets to send you e-mail about it.

Sorry, that work-around doesn't work for me.  My sense is that Expedia is way out of line and is operating in open violation of the Can Spam Act on at least two counts. First, ignoring the e-mail preferences of its customers. Second, sending commercial e-mail with no clearly marked unsubscribe links. If Expedia thinks it can send its customers a coupon offer for $200 and call it transactional e-mail so as to avoid the jurisdiction of the Can Spam Act, then nothing prevents every other spammer out there from sending electronic coupons for 10 cents and declaring the same. Did Expedia break the law? While I wait for Expedia to get to me with its side of the story (and tell me why I shouldn't start doing business with one of its competitors instead), you tell me:

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