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Municipal Technical Advisory Service (MTAS)

Original Author: Rogers, Honna
Co-author: Hodge, Elisha
Shipley, Lisa
Date of Material: 01/12/2017

Internet (Computer network)
Wireless internet--Laws and regulations

E-mail Distribution By City and City-Wide Wifi Analytics Disclosure

Reviewed Date: 04/26/2021
MTAS responds to questions regarding emails distributed by the city to residents and the legal risks of installing wireless internet connections in a downtown area of the city.

Dear City Official,

I consulted with Elisha Hodge, MTAS legal consultant and Lisa Shipley, MTAS IT Manager, on your questions below.  Responses are included with each question below. 

You requested information on what other Tennessee cities are doing in regards to installation of wireless internet or wifi in downtown areas. In my research, I found that Columbia (TN) does provide wifi downtown, however, other cities offer more limited wifi access in specific buildings or in parks but not downtown-wide.

Question 1. The city's Mayor has collected around 1500 email addresses and they regularly send emails out.  They are also about to move to an email server and there are federal guidelines about spam mail and they are not sure if this list is considered “subscribed.”  Can they just move them over to the new one? 
With regard to the first question, If emails are being sent out for commercial purposes, then the requirements of the federal CAN-SPAM Act must be followed, which include obtaining the affirmative written consent of the person to whom the email address belongs, for emails to be sent to his/her email address. Here is a link to the FCC’s website that specifically addresses this issue: Here is another helpful link from the FCC’S website. I suggest that all of the questions and responses be read.
If the emails are being sent out for a non-commercial purpose, the CAN-SPAM Act is not applicable. See the last question and answer at the link above. However, while this law might not be applicable to non-commercial emails an often cited best practice is to gain consent before email lists are used or email blasts are sent out. Additionally, even if the city thinks that right now that only non-commercial emails will be sent, I encourage consent to be obtained just in case emails that have both non-commercial and commercial content are sent, since those are subject to federal regulations.
I think in general, if the city wants to do a listserv, it is better to have citizens sign up for it, knowing that there email addresses are going to be used and they will be receiving emails from the city. Otherwise, there is likely to be a number of citizens questioning how the city obtained their email addresses without them knowing. Also, if an old list is used, is it is likely that a number of the email addresses on the list are no longer linked to active email accounts. For purposes of efficiency and transparency and in an effort to avoid potential legal issues in the future, I suggest that the city obtain the written consent of citizens before sending email blasts.
Question 2. The city is installing Wifi in downtown points. The city would like to know if there are any legal risks with this, especially since they will be collecting analytics off of them. 
Most companies that collect data list in their disclosure statement what they collect from the end user and eliminate their liability from doing so in that same statement.  It’s often pretty substantial which is why I never use free wifi when I’m out an about.  Starbucks is one that I’ve studied and they capture most everything about you off your machine when you use their wifi.
As a starting point when I am asked about gathering analytics, I tell folks to write up a full disclosure of what they are collecting and how they will use it.  After the statement is approved with their attorney, the city could create a portal (like you may have seen at a hotel) so citizens have to agree to it before proceeding to use the wifi.
 Please advise how we can further assist you.

Honna Rogers
MTAS Municipal Management Consultant