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:

(2) CIVIL LIABILITY- No provider or user of an interactive computer service shall be held liable on account of–
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

There is existing case law that states that spam blocking falls is protected under the CDA, including e360Insight, LLC v. Comcast.

I’m sure if the ISPs start blocking mail users actually want, that the users will actually point this out and the ISPs will be forced to change what they’re doing. A class action lawsuit by a bunch of marketers who are annoyed their “VITAL MARKETING MESSAGES” aren’t being forced into the inboxes of unwilling recipients doesn’t seem to meet that standard, though.
Really, Marketers, is there any part of my mailbox you don’t want to control?

Related Posts

Getting removed from an ISP block

A question came up on a mailing list about how long it typically took to resolve a spam block at an ISP. I don’t think that question actually has a single answer, as each ISP has their own, special, process.
ISPA takes 5 minutes. You fill out a form, it runs through their automated system and you’re usually delisted.
ISPB asks a lot of questions in their form, so it takes about 15 minutes to collect all the data they want and 10 minutes to fill out their form. Then, using very, very short words you keep repeating what you need to the tier 1 person who initially responded. That person eventually figures out they can’t blow you off and throws your request to tier 2, who handles it immediately.
ISPC has a different, somewhat long form. Again, you spend time collecting all the data and then fill out the somewhat obscure form. You get a response, but it’s a boilerplate totally unrelated to the initial request, so you keep answering until you find a tier 1 rep who can read and do what you initially asked.
ISPD has a form that takes about 2 minutes to fill out. Unfortunately, it goes to an outsourced postmaster team in the Far East and response times are ranging from days to months right now.
ISPE has an email address and if you catch them on a good day, they’re very helpful. Sometimes there’s no response, though.
ISPF has a troubleshooting page and accept requests to fix things, but never respond in any visible manner.
ISPG they tells you to talk to Spamfiltering Company H.
Spamfiltering company H answers their email in a prompt and friendly manner. OK, sometimes the answers are just “wow, your client/customer/IP range is sending lots of spam,” but hey, it’s an answer.
Spamfiltering company I is a useless bag of protoplasm and don’t even answer the email address they give you on their webpages. In a fit of fairness, I have heard they will occasionally respond, but usually that response is to tell you to go pay some apparently unrelated company a bribe to get delisted.
Spamfiltering company J doesn’t have a lot of ways to contact them, but have a lot of folks that participate in various semi-public arenas so if you’re even slightly part of the community, you can email them and they’re very helpful.
Spamfiltering company K is totally useless, but will tell you to have recipients whitelist you.

Read More

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.

Read More

Time to step up

Neil Schwartzman reacts to yesterday’s link post.

Read More