Spam War Heats up Again

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The war over spam is heating up again. This time the venue is the courts, and it's the accused spammers who are on the attack.

Notice that I said, "accused spammers." Yesmail and the folks who run the Harris Poll would have a hard time fitting into Spamford Wallace's clothes. They say they're legitimate email marketers.

Yet both Yesmail and Harris recently found themselves on the Mail Abuse Prevention System (MAPS) Realtime Blackhole List (RBL). They reacted in the good old American way they sued.

At issue is how spam is defined and who can take action against it. MAPS, a nonprofit group based in Redwood City, Calif., has become increasingly aggressive in its definitions lately. It defines opt out or negative opt in check boxes that must be clicked so you won't get marketing messages, or check boxes whose default is a check as spam.

The site states this clearly. "Marketers who wish to insist on a so-called opt-out strategy in which they take it upon themselves to send as much promotional material as they want to someone's email box until asked to stop are eligible for listing on the RBL. The opt-out approach violates our fundamental principle: All communications must be consensual. Prudent mailing list management mandates verification of all subscription requests before mailings commence."

To many direct marketers this is too much. The MAPS standard seems to mandate a double opt in. Someone signs up, you send him or her a note asking "Are you sure you signed up?" and he or she has to send a note back saying, "Yes, I signed up," or "No, I didn't sign up." Many legitimate newsletters, including my own a-clue.com, don't go that far. I send a confirmation to a subscribe request that acts as an opt-out invitation, but if no reply comes in, I assume the recipient has subscribed.

The marketers' view was put succinctly in a recent Wall Street Journal story on the Harris suit. "Should one organization hold the power to determine whether millions of Internet messages get through to their destinations?"

Harris may have been encouraged by the fact that Yesmail of Chicago, which doesn't use double opt in either, pried itself off the list with a lawsuit. The Journal writes "Yesmail won a temporary restraining order, preventing the group from placing Yesmail on the list" and "The two sides settled the dispute." That may not be entirely accurate. A MAPS press release quoted Yesmail CEO David Tolmie this way: "As discussions with MAPS have proceeded, we are both finding that the goals for yesmail.com and MAPS are very much in alignment."

MAPS is, unfortunately, a vigilante organization in that there's no law giving it authority or setting standards for defining spam. But the alternative to MAPS is worse: an unremitting flood of spam and pseudospam making real email marketing impossible.

If there were laws defining spam and mandating penalties, MAPS wouldn't be needed. Such a law passed the House (with support from antispam activists and was placed before the Senate on July 19 as H.R. 3113. Business interests serious about the "MAPS bottleneck" can end it by passing the bill. It sounds cheaper than a lawsuit.