Anti-Spam Start-up Habeas Debuts

Internet service providers could have a novel new way to fight spam, thanks to a new verification service — although email marketers also may face increased pressure to switch to controversial double-opt-in lists.

The concept behind the new project, run by Palo Alto, Calif.-based Habeas, works similarly to efforts like Trusted Sender, a service administered by TRUSTe and ePrivacy Group, in which a piece of information is appended to email content to verifying its authenticity and the spam-free nature of the mailing.

Habeas’ authenticating information resides in an email’s header, and is intended to be licensed to legitimate marketers and non-commercial mass mailers to use in their email communications. Trusted Sender, likewise, licenses its seal to marketers.

Ideally, messages bearing either seal will be identified as legitimate communications by spam filters and thereby not treated as potential spam.

In Habeas’ case, the seal — called a Warrant Mark — is simply a haiku poem. That might seem an odd way to safeguard email communications, except for the fact that poetry is protected under copyright law. As a result, Habeas can sue spammers for misappropriating the header. Additionally, a line of the poem refers to a term that is trademarked by the company. As a result, Habeas also is likely to have the right to sue under trademark law.

Those unique legal protections are seen by the company as a major deterrent to spammers. While anti-spam laws don’t yet exist in every state and nationwide legislation is likely years away, Habeas can file legal complaints on the basis of long-established trademark and copyright infringement laws. Additionally, international copyright law offers similar protections in many parts of the world.

Also, the few anti-spam laws enacted by U.S. states generally provide for damages in the neighborhood of hundreds or thousands of dollars, but trademark and copyright damages can surpass the $1 million mark.

To ensure that spammers pay up, Habeas retained D&B , formerly Dun & Bradstreet, to serve as its collection agency — a move that gives the firm powers to track down and exact fees from infringing mailers, or to bring additional charges against mailers.

Heading up Habeas as chief executive is Anne Mitchell, former legal affairs director for the controversial Mail Abuse Prevention System, or MAPS. MAPS is best known as the operator of the Realtime Blackhole List, one of several lists of IP addresses suspected of originating spam. ISPs and businesses subscribed to the RBL, as it was known, and filtered email out based on its database. While the service is typically held in high regard among ISPs, there are several blemishes on its record: a handful of marketers successfully challenged their listing on the RBL, while others forced ISPs using the RBL to again open their systems to their mass emailing.

Despite some of the problems surrounding the MAPS RBL, Habeas is looking to follow in the service’s footsteps by partnering with ISPs and other spam filter providers. Already, it’s signed Microsoft Corp.’s WebTV and email messaging provider Outblaze as users, in addition to anti-spam firms like Deersoft and Mail-Filters.com.

Habeas’ flat-fee license for businesses includes the code to add the haiku to outgoing mail headers. E-mail marketers, meanwhile, are expected to pay a fee based on mail volume.

Verification services like Trusted Sender and Habeas’ Warrant Mark are receiving increasing attention from online marketers, who seek ways to ensure that their messages are received by the intended recipients. But as businesses and ISPs tighten their efforts to weed out costly unwanted email, legitimate mailings often can be misidentified as spam.

But Habeas also stands to raise some new worries for marketers. For commercial emailers to use its header, the firm requires that they use so-called “double-opt-in” lists — a model that remains far less popular among marketers than either “single-opt-in” and “opt-out.” Many email list brokers and owners are reluctant to shift to double-opt-in lists — which require that consumers verify twice that they wish to receive commercial email — in fear that subscriber numbers will decline if customers find the extra verification steps frustrating, or simply too complicated to follow.

Additionally, Habeas plans to create its own database of spammers, called the Habeas Infringers List. The company said it would use the list to record IP addresses for which it has “infringing or breaching material in-hand,” and for which the parties responsible for that address “have demonstrated themselves unwilling or unable to rectify the situation, and to do so in a timely manner.”

But marketers are likely to be concerned because of the HIL’s similarity to the older MAPS RBL — which, while lauded by privacy advocates, frequently sparked legal squabbles between marketers and email services firms on one side, and ISPs and MAPS on the other.

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