The new tabbed Gmail interface and the new ads that come with it has ruffled the feathers of many marketers and senders for a variety of reasons. In the course of the discussion of those reasons arises an interesting question:  are the new ads subject to CAN SPAM requirements?

Possibly: they are presented in the inbox in a manner that very much resembles all of the other e-mail messages you’d expect to find there. Recipients can interact with the ads using the same Gmail interface metaphors as any other e-mail message received in Gmail. Viewers can even forward, “Star” and dismiss the new ads.

Possibly not: they are not actually e-mail messages – they’re web-based advertisements formatted and presented in such a way as to closely resemble actual e-mail messages, but are otherwise very much like the ones Gmail users are accustomed to seeing to the right and above the inbox. There’s even some evidence to suggest that the new ads employ the same engine as the ordinary Gmail display ads to select and present those that Google deems a viewer is most likely to click.

My own opinion, for whatever it might be worth, is that the new ads are not subject to CAN SPAM regulation. It’s a difficult opinion to defend, because while the language of the law makes it clear that the restrictions it imposes apply solely to commercial messages sent via e-mail, that same language advances only a frustratingly vague definition of an e-mail message. Per 15 USC 7702 sec.(3)(6), “[t]he term ‘electronic mail message’ means a message sent to a unique electronic mail address.”

I believe the answer to the question of whether the new Gmail ads are subject to the law hinges on a prevailing interpretation of the word “sent,” or to be quite specific, whether the commercial message relied upon SMTP transit to reach its intended recipients.

If the ad is, as I assert above, merely a HTTP-based banner ad formatted to closely resemble an e-mail message in the inbox, then it cannot be said to have been “sent” in the manner contemplated by CAN SPAM. This new hybrid of inbox and banner ad didn’t exist in 2003 when the law was passed; the law does not seem to predict or account for them in the slightest. It sought then to regulate e-mail messages as the Federal Trade Commission then understood them. For this reason, I believe that transit via SMTP is a definitive quality of an e-mail message as CAN SPAM defines it. If that’s true, then the new ads cannot fall under the purview of CAN SPAM.

It’s worth noting that CAN SPAM does not actually render unsolicited commercial e-mail advertisements illegal; the law merely creates a series of requirements to be met by those senders who insist on sending commercial e-mail without the recipients’ advance permission.

Those who accuse Gmail of spamming its own users may be entirely correct if my reckoning is dead wrong. It’s just a shame that, in the United States, such behavior is otherwise entirely legal under current law.