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?

Gmail Evolution
In Atlanta through Friday

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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.

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Time to step up

Neil Schwartzman reacts to yesterday’s link post.

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Blocking of ESPs

There’s been quite a bit of discussion on my post about upcoming changes that ESPs will be facing in the future. One thing some people read into the post is the idea that ISPs will be blocking ESPs wholesale without any regard for the quality of the mail from that company.
The idea that ESPs are at risk for blocking simply because they are ESPs has been floating around the industry based on comments by an employee at a spam filter vendor at a recent industry conference.
I talked to the company to get some clarification on what that spam filtering company is doing and hopefully to calm some of the concerns that people have.
First off, and probably most important, is that the spam filtering company in question primarily targets their service to enterprises. Filtering is an important part of this service, but it also handles email archiving, URL filtering and employee monitoring. The target market for the company is very different than the ISP market.
The ISPs are not talking about blocking indiscriminately, they are talking about blocking based on bad behavior.
Secondly, this option was driven by customer request. The customers of the spam filtering appliance were complaining about “legitimate” mail from various ESPs. Despite being reasonable targeted the mail was unrequested by the recipient. While ESPs use FBLs and other sources of complaints to clean complainers off rented or epended lists at ISPs, the option is not available for mail sent to corporations. Enterprises don’t, nor should they have to, create and support FBLs. Nor should employees be expected to unsubscribe from mail they never requested.
This option is the direct result of ESPs allowing customers to send spam.
Thirdly, this option is offered to those customers who ask for it. It is not done automatically for everyone. The option is also configurable down to the end user.
While I haven’t seen the options, nor which ESPs are affected, I expect that the ones on the list are the ones that the filtering vendor receives complaints about. If you are not allowing your customers to send spam, and are stopping them from buying lists or epending, then you probably have not come to the attention of the filtering company and are not on the list of ESPs to block.

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