It's not illegal to block mail

My post “We’re going to party like it’s 1996” is still getting a lot of comments from people. Based on the comments, either people aren’t reading or my premise wasn’t clear.
Back in 1996 the first lawsuits were brought against ISPs to stop ISPs from blocking email. These suits were failures. Since that time, other senders have attempted to sue ISPs and lost. Laws have been written protecting the rights of the ISPs to block content they deem to be harmful.
Dela says that he was just attempting to open up a conversation, but I don’t see what he thinks the  conversation is. That ISPs shouldn’t block mail their customers want? Sure, OK. We’re agreed on that. Now, define what mail recipients want. I want what mail I want, not what someone else decides I might want.
Marketers need to get over the belief that they own end users mailboxes and that they have some right to send mail to people. You don’t.
When marketers actually start sending wanted mail, to people who actually subscribe – not just make a purchase, or register online or happen to have an easily discoverable email address – then perhaps marketers will have some standing to claim they are being treated illegally. Until and unless that happens, the ISPs are well within their rights to block mail that their users don’t want.

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We're gonna party like it's 1996!

Over on deliverability.com Dela Quist has a long blog post up talking about how changes to Hotmail and Gmail’s priority inbox are a class action suit waiting to happen.
All I can say is that it’s all been tried before. Cyberpromotions v. AOL started the ball rolling when they tried to use the First Amendment to force AOL to accept their unsolicited email. The courts said No.
Time goes on and things change. No one argues Sanford wasn’t spamming, he even admitted as much in his court documents. He was attempting to force AOL to accept his unsolicited commercial email for their users. Dela’s arguments center around solicited mail, though.
Do I really think that minor difference in terminology going to change things?
No.
First off “solicited” has a very squishy meaning when looking at any company, particularly large national brands. “We bought a list” and “This person made a purchase from us” are more common than any email marketer wants to admit to. Buying, selling and assuming permission are par for the course in the “legitimate” email marketing world. Just because the marketer tells me that I solicited their email does not actually mean I solicited their email.
Secondly, email marketers don’t get to dictate what recipients do and do not want. Do ISPs occasionally make boneheaded filtering decisions? I’d be a fool to say no. But more often than not when an ISP blocks your mail or filters it into the bulk folder they are doing it because the recipients don’t want that mail and don’t care that it’s in the bulk folder. Sorry, much of the incredibly important marketing mail isn’t actually that important to the recipient.
Dela mentions things like bank statements and bills. Does he really think that recipients are too stupid to add the from address to their address books? Or create specific filters so they can get the mail they want? People do this regularly and if they really want mail they have the tools, provided by the ISP, to make the mail they want get to where they want it.
Finally, there is this little law that protects ISPs. 47 USC 230 states:

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Bad year coming for sloppy marketers

MediaPost had an article written by George Bilbrey talking about how 2010 could be a difficult year for marketers with marginal practices. George starts off the article by noticing that his contact at ISPs are talking up how legitimate companies with bad practices are causing them problems and are showing up on the radar.
This is something I talked about a few weeks ago, in a series of blog posts looking at the changes in 2010. The signs are out there, and companies with marginal practices are going to see delivery get a lot more difficult. George lists some practices that he sees as problems.

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Legitimate mail in spamfilters

It can be difficult and frustrating for a sender to understand they whys and wherefores of spam filtering. Clearly the sender is not spamming, so why is their mail getting caught in spam filters?
I have a client that goes through this frustration on rare occasions. They send well crafted, fun, engaging content that their users really want. They have a solid reputation at the ISPs and their inbox stats are always above 98%. Very, very occasionally, though, they will see some filtering difficulties at Postini. It’s sad for all of us because Postini doesn’t tell us enough about what they’re doing to understand what my client is doing to trigger the filters. They get frustrated because they don’t know what’s going wrong; I get frustrated because I can’t really help them, and I’m sure their recipients are frustrated because they don’t get their wanted mail.
Why do a lot of filter vendors not communicate back to listees? Because not all senders are like my clients. Some senders send mail that recipients can take or leave. If the newsletter shows up in their inbox they may read it. If the ad gets in front of their face, they may click through. But, if the mail doesn’t show up, they don’t care. They certainly aren’t going to look for the mail in their bulk folder. Other senders send mail that users really don’t want. It is, flat out, spam.
The thing is, all these senders describe themselves as legitimate email marketers. They harvest addresses, they purchase lists, they send mail to spamtraps, and they still don’t describe themselves as spammers. Some of them have even ended up in court for violating various anti-spam laws and they still claim they’re not spammers.
Senders are competing with spammers for bandwidth and resources at the ISPs, they’re competing for postmaster attention at the ISPs and they’re competing for eyeballs in crowded inboxes.
It’s the sheer volume of spam and the crafty evilness of spammers that drives the constant change and improvement in spamfilters. It’s tough to keep up with the spamfilters because they’re trying to keep up with the spammers. And the spammers are continually looking for new ways to exploit recipients.
It can be a challenge to send relevant, engaging email while dealing with spamfilters and ISPs. But that’s what makes this job so much fun.

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