Spam is not illegal

I was recently taken to task for claiming that unsolicited bulk email was spam.

Spam is illegal and Spammers are criminal. Let’s not mess about with words here. Calling someone a spammer is inflamitory [sic].

I’m not arguing that sending unsolicited bulk email is anything other than bad. And that a lot of senders have a negative reaction to being called spammers. I’ve even had hate mail for saying that an ISP was blocking mail because recipients were saying the mail was spam.
In the US, though, spam is not illegal. Violating CAN SPAM is illegal and may result in civil or criminal penalties. Sending mail to recipients that never gave permission? Not illegal.
Is there a lot of spam out there that violates CAN SPAM? Absolutely. But that’s not the sum total of email. In fact, that’s very little of the email that recipients actually see. ISPs and filtering companies do a pretty good job at filtering out most of the illegal stuff.
There is a lot of social pressure to not be perceived as a spammer. There is much social pressure to not send mail people like.
And, yes, there are countries where it is illegal to send mail without opt-in permission. Ironically, one of those countries is the UK. Marketers in the UK have 3 or 4 of my email addresses and frequently send me unsolicited email, in violation of their laws. I’ve even blogged about some of it.

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What Happens Next…

or Why All Of This Is Meaningless:
Guest post by Huey Callison
The analysis of the AARP spam was nice, but looking at the Mainsleaze Spammer Playbook, I can make a few educated guesses at what happens next: absolutely nothing of consequence.
AARP, if they acknowledge this publicly (I bet not) has plausible deniability and can say “It wasn’t us, it was an unscrupulous lead-gen contractor”. They probably send a strongly-worded letter to SureClick that says “Don’t do that again”.
SureClick, if they acknowledge this publicly (I bet not) has plausible deniability and can say ‘It wasn’t us, it was an unscrupulous affiliate”. They probably send a strongly-worded letter to OfferWeb that says “Don’t do that again”.
OfferWeb, if they acknowledge this publicly (I bet not) has plausible deniability and can say ‘It wasn’t us, it was an unscrupulous affiliate”. And maybe they DO fire ‘Andrew Talbot’, but that’s not any kind of victory, because he probably already has accounts with OTHER lead-gen outfits, which might even include those who also have AARP as
a client, or a client-of-a-client.
So the best-case result of this analysis being made public is that two strongly-worded letters get sent, the URLs in the spam and the trail of redirects change slightly, but the spam continues at the same volume and with the same results, and AARP continues to benefit from the millions of spams sent on their behalf.
I’m not a lawyer, but I was under the impression that CAN-SPAM imposed liability on the organization that was ultimately responsible for the spam being sent, but until the FTC pursues action against someone like this, or Gevalia, corporations and organizations will continue to get away with supporting, and benefiting from, millions and millions of spams.
As JD pointed out in a comment to a previous post: sorry, AARP, but none of us are going to be able to retire any time soon.

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TWSD: breaking the law

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.

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How do I know you're spamming?

There are a number of reasons I know that mail coming into my mailbox is spam.

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