FTC Panel 4: That Time My Mind Was Blown or Is Email Considered Mail?

The question was startling in its simplicity — one of those things that I’ve probably taken for granted my whole life. (Or, at least, the whole of my life that was aware of the Internet.) Is email considered mail?

“Well of course it…is? Or isn’t? I mean, it’s definitely…not. Or it is?” I was heartened to see the panelists struggling as much as I was.

Email communication seems like a fantastic idea at first blush. It’s targeted directly to the consumer. It’s an alternative to phones (and society seems to be more and more phone-phobic^*). It’s cost-efficient, since there’s no postage. It truly seems like an unbeatable idea.

So of course it’s doomed to failure.

The failure starts like this: the Fair Debt Collection Practices Act uses the word “mail” in its legalese. And the FDCPA was written at some point after the Declaration of Independence but before 1997 when I got my first email address. So, since the FDCPA doesn’t know about email, it’s unclear whether the FDCPA can know about email.

One of the panelists, Robert W. Murphy, Secretary for the National Association of Consumer Advocates, avers that no: the FDCPA does not want email to be counted as mail. His argument relied on very literal and tangible things like “it’s not actual mail with an actual stamp” and “you have to print it out.”

On the other side of the argument, Zafar Khan of RPost U.S., Inc., and Barbara Sinsley of DBA International, suggested that email should have — and actually does have — the same legitimacy of traditional postal mail. Especially in a post-Electronic Signatures in Global and National Commerce Act world. Even if the FDCPA has not changed in 30+ years, Khan and Sinsley argued, our definition and acceptance of email as mail has.

Email communication is still The Future for many collection agencies — especially since there are no clear guidelines on the use of email, or even a clear way to be protected if an agency wanted to use email. What seems to be a frustrating continuum throughout all of these panel discussions is that the questions are real, and provocative; but the answers are convoluted or not forthcoming.

^* An actual conversation I heard on the train once: “My sister doesn’t understand how to answer her phone. She only uses it for texting.” I then turned 97 and realized that I was exhaustingly old.