Shady direct marketers exploit CAN SPAM to continue spamming but protect themselves from the law. This is something I’ve been talking about for a while (TWSD), and it’s nice to see the mainstream press noticing the same thing.
HT: Box of Meat
I tell my clients that they should comply with CAN SPAM (physical postal address and unsubscribe option) even if the mail they are sending is technically exempt. The bar for legality is so low, there is no reason not to.
Sure, there is a lot of spam out there that does not comply with CAN SPAM. Everything you see from botnets and proxies is in violation, although many of those mails do actually meet the postal address and unsubscribe requirements.
One of my spams recently caught my eye today with their disclaimer on the bottom: “This email message is CAN SPAM ACT of 2003 Compliant.” The really funny bit is that it does not actually comply with the law. Even better, the address it was sent to is not published anywhere, so the company could also be nailed for a dictionary attack and face enhanced penalties.
It reminds me of the old spams that claimed they complied with S.1618.
Earlier this week ARS Technica reported on a ruling from the Missouri Court of Appeals stating that terms and conditions are enforceable even if the users are not forced to visit the T&C pages. Judge Rahmeyer, one of the panel members, did point out that the term in question, under what state laws the agreement would be enforced, was not an unreasonable request. She “do[es] not want [their] opinion to indicate that consumers assent to any buried term that a website may provide simply by using the website or clicking ‘I agree.'”
What does this have to do with email? Well, it means that reasonable terms in the agreements may still be binding even if the user does not read the full terms of the opt in before submitting an email address. In practical terms, though, there’s very little that has changed. Hiding grants of permission deep in a terms document has long been a sneaky trick practiced by spammers and list sellers. Legitimate companies already make terms clear so that users know what type of and how much mail to expect by signing up to a list. They also know that the legal technicalities of permission are not as important as meeting the recipients expectations.
About a month ago I posted about receiving spam from a psychic attempting to sell me candles and stuff. The spammer was sending mail from a company called “Garden of Sound” using an ESP called OnLetterhead. A brief investigation led me to believe that unsubscribing from the mail was not going to do anything.
The post prompted an email from Scott B. the VP of Marketing of the company that is responsible for OnLetterhead. I replied to his email, pointing out a number of things he was doing that made his business look like an ESP front for spammers.
After he received my mail he called me to talk to me about the content of my post and the email and to assure me they were immediately implementing one of my suggestion (that they not put a generic “here’s how to unsubscribe” link on their 1000+ link domains, instead have those actually point to their AUP and corporate pages). He also assured me they took my complaint seriously and I would no longer be receiving email.
Guess what?
Garden of Sound is still spamming me from OnLetterhead. They’ve not even managed to implement the changes they pledged would be rolled out the same week as my blog post. Sure, the domain I’m getting spam from is different, the physical postal address is different, the product is different, the friendly from is different. But the preheader still says “this mail sent by Garden of Sound.” It’s all the same list, it’s all the same company, it’s all the same group of spammers.
Despite Scott’s attempt to convince me he wasn’t a spammer, it seems my initial impression was right. OnLetterhead is simply are a company attempting to look like they’re legitimate without actually taking any responsibility for the email going out from their network. They can’t even manage the bare minimum.
It’s companies like this that give the rest of ESPs a bad name.