[grayMatter] Avoid the Email Black Hole, October 2003

Will Spam Legislation Make You a Spammer?

by Brian Klais

We're all drowning in spam these days. So federal anti-spam legislation sounds like a good idea, both for us as consumers, and to increase response rates for us as legitimate marketers. After all, until it is finally declared illegal, the economics of spam are certainly no deterrent to prevent spammers from plying their trade.

However, there are three major flaws with most of the leading anti-spam bills being proposed we as marketers need to be aware of. Take the leading bill, CANSPAM, for example, which stands for the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2002". This bill has already passed in the House and is expected to pass the Senate this year. This bill calls for labeling email messages as advertisements, as well as a clear opt-out mechanism. Sounds simple enough.

But the fundamental problem with any piece of spam legislation is enforcement. Spammers are deceptive by nature. He or she who does not blush at forging from-addresses and using blatantly misleading subject lines to purvey their junk, will neither feel compelled to place an "ADV" advertising tag in the email subject line.

Further, the Internet is a global and anonymous medium. Without international anti-spam laws (not to mention global cooperation), how does one prevent serious spammers from opening up throwaway ISP accounts in Bermuda or South Africa to continue spamming away from U.S. shores?

Second, most bills, including CANSPAM, legitimize an "opt-out" approach by placing the burden on the recipient to unsubscribe from emails, rather than an "opt-in" approach as the European Union has adopted. That means if you choose not to opt-out, your silence can be construed as consent to continue receiving spam. Is this really what we want?

While businesses should have the right to make a first contact, how do you feel about being expected to remove yourself from the compounding stream of spam - knowing it will never end but only grow for as long as people share these lists? In response, you'll probably just create more throwaway addresses and rely more heavily on your spam filters.

This introduces the third and most serious problem these bills raise for marketers: The hidden cost of compliance. This law would require appending an "ADV" advertising tag to the subject line along with standard opt-out verbiage at the top of the email. This all sounds reasonable.

The problem? Adding even just these two elements to an email - without any other content whatsoever, will cause spam filters like SpamAssassin to block your email as a spam message. Check out this surprising example: http://www.gravitymail.com/spamscore.php

Ironically, CANSPAM would leave marketers in a Catch 22: Either break the law in order to market your business, or comply with the law and be labeled a spammer. All this for a law which will not have the power to curb the daily influx.

While we can probably all agree that the intentions of eliminating unsolicited pornography from our inboxes is good, we all know where the road paved with good intention leads... As they are crafted, the current round of bills only have the ability to throw the baby out and keep the bathwater.

Have any thoughts on spam legislation? Email me brian @ gravitymail.com. I'd love to hear them.

Administrivia

Questions? Comments? Contact:
Brian Klais
Editor, grayMatter
grayMatter @ gravityMail.com
p: (608) 285-6600
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bad spammer