Garbage in… garbage out

Ken Magill (hereafter known as Mr. Stupid Poopypants) has a follow up article today on his article from last week about the Obama campaign’s mailing practices. While poking Dylan a bit, his message is that marketers really need to look harder at double opt-in.

All these things can and do go wrong with double opt-in, but the risks of not using it have simply become too great. For one thing, if a marketer gets blacklisted by, say, Spamhaus, and the mailer is not using double opt-in, the folks at Spamhaus will force the issue.
On the plus side, marketers using double opt-in don’t get blacklisted by Spamhaus because they never hit Spamhaus’s traps—fake e-mail addresses set up to catch spammers.
Also, fake signups are nothing to get worked up about. They are simply a fact of e-mail list building that the marketer must guard against or accept the inevitable consequences. It is solely up to mailers to keep their lists clean, and no one else.

Data verification is a necessary and critical bit of email marketing on today’s internet. For many marketers, the only solution may be to move to double opt-in.

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7th circuit court ruling in e360 v. Spamhaus

Mickey has some commentary and the full ruling up on Spamsuite. In short the appeals court affirmed the default judgment, vacated the judgment on damages and remanded the case back to the lower court to determine appropriate damages.
There are a couple bits of the ruling that stand out to me and that I think are worthy of comment.
Spamhaus made a very bad tactical decision by initially answering and then withdrawing that answer. The appeals court ruled that action signaled that Spamhaus waived their right to argue jurisdiction and that they submitted to the jurisdiction of the court. Based on this, the appeals court upheld the default judgment against Spamhaus. Not necessarily the outcome any of us wanted, but that doesn’t set any precedent for future cases unless defendants answer and then withdraw the answer. Specifically on page 12 of the ruling the court says:

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Spamfilters are stupid

Ben over at MailChimp writes about spamfilters that are following links in emails resulting in people being unsubscribed from lists without their knowledge. I strongly suggest clients use a 2 step unsubscribe system, that does not require any passwords or information. The recipient clicks on a link in the email and confirms that they do want to be unsubscribed once they get to the unsubscribe webpage.
Even more concerning for me is the idea that people could be subscribed to emails without their knowledge. For some subset of lists, using confirmed (double) opt-in is the best way to make sure that the sender really has permission from the recipient. Now we have a spam filter that is rendering “click here to opt-in” completely useless. I am sure there are ways to compensate for the stupidity of filters. As usual, though, the spammers are doing things which push more work off onto the end user and the legitimate mailers.

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Spamhaus files for dismissal of e360 case

Spamhaus filed a motion today asking the judge to dismiss the e360 v. Spamhaus case for contempt. Mickey, as usual, has the docs up.
I have not posted much on the case recently, as there was only legal wrangling about discovery going on. The biggest problem being that e360 has dragged their feet, stalled and avoided discovery for the last 8 months. They have missed deadlines, turned over incomplete documents and ignored depositions. Since I last wrote about this case, discovery has been extended multiple times, the judge has compelled e360 to turn over docs and information and he sanctioned e360 for their failures to comply.
From my perspective, Spamhaus’ lawyers have been setting the stage for this motion for the last 4 – 5 months. Their interactions with e360’s lawyers, their motions to compel and their motion for sanctions have all formed a narrative of how e360 is stonewalling discovery.
This particular motion is only about 8 pages long, but references a 125 page exhibit. The very large exhibit is mostly documents that have been published before in the “Motion for Various relief due to Persistent Discovery Defaults” filed in July.
In the July motion, Spamhaus’ lawyers detail their repeated efforts to get discovery from e360, and the utter lack of cooperation. One of my favorite bits is that e360 responded (weeks late) to some of the initial interrogatories with (paraphrased), “It is too hard to write all this down, but we will tell you about it in the depositions.” My understanding of the law is that this is, in and of itself, a bit of a no-no. What really puts the icing on the cake, though, is that e360 then skipped 2 properly noticed depositions. They just did not appear, thus making their answers to the interrogatories utterly meaningless.
Spamhaus requested that the Judge impose sanctions on e360 for failing to appear at 2 depositions, not complying with the judge’s previous orders and generally being unable to actually produce any documentation that is complete or on time. Even better, when e360 did manage to produce a thumb drive it contained multiple email conversations between Mr. Linhardt and his lead counsel. This little oops happened because no one at the law firm bothered to actually examine any of the files before handing over the thumb drive. In fact, they only became aware of their error when opposing counsel notified them of the files. When e360 asked for the information back, Spamhaus’ lawyers refused pointing out that they handed over all the information willingly and that their failure to actually examine the files does not constitute an inadvertent disclosure.
The judge did sanction e360, although not with the severity that Spamhaus’ lawyers requested. He also ordered full discovery and documents turned over by August 15th. Based on my reading of the transcript (exhibit 4) the Judge sounds like he is tired of having to tell the e360 lawyers to do their jobs. The judge lectured e360 on their failure to get thing resovled.

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