April 2, 2004, 12:00 AM

The battle between good e-mail and bad e-mail

(Page 6 of 6)

The four ISPs-AOL Inc., Microsoft Corp., Yahoo Inc. and EarthLink Inc.-have charged defendants with sending a combined hundreds of millions of e-mail messages to the ISPs` e-mail subscribers. Although many of the defendants are named only as "John Does," the ISPs say their lawsuits are going after some of the kingpins of spam. Yahoo noted that, in suing a group of alleged spammers known collectively as "The Head Operation," including Head Programming Inc., Gold Disk Canada Inc. and Infinite Technologies Worldwide Inc., it is targeting the source of about 94 million e-mail messages in January alone.

EarthLink said one group of 75 John Doe defendants and other alleged spammers have been responsible for a substantial portion of the incoming spam on EarthLink`s network since Jan. 1. And AOL noted in "AOL v. John Does 1-40" that the defendants` millions of e-mail spam messages sent from at least last November led to more than 500,000 complaints filed by AOL e-mail subscribers.

The four ISPs, which formed an anti-spam alliance last April and have met regularly to address the spam issue, say the alleged spammers used a variety of methods to deliver spam in violation of CAN-Spam. They note that much of the spam cited in the lawsuits was routed through open proxies or third-party computers to disguise their point of origin; they were sent with falsified "from" addresses and without the inclusion of a physical address or unsubscribe option as required by CAN-Spam. The spam covered a broad range of marketing pitches, including get-rich-quick schemes, pornography, mortgage loans and cable de-scramblers.

The ISPs say they expect the CAN-Spam law and other efforts to have a long-term impact on spam. "With the creation of this anti-spam industry alliance and the implementation of a federal law to litigate effectively against spammers, we are witnessing the impact that this industrywide attack on spam is having," said Nancy Anderson, deputy general counsel for Microsoft. "We`ve had the opportunity to share investigative best practices and various legal resources and information to ensure that spammers are going to have an increasingly difficult time continuing their deceptive practices with the full force of this industry coming down on them."


The FTC asks: Exactly what is spam?

CAN-Spam is a work in progress. To help devise its strategy to enforce the CAN-Spam Act, the Federal Trade Commission is seeking public input into the definition of spam. Areas the FTC wants to clarify:



CAN-Spam exempts messages that complete or confirm a transaction between the recipient and the sender. Should the FTC modify the definition of a transactional message and if so, how?

l Is the 10-day opt-out period reasonable?

l What constitutes an aggravating violation, in addition to harvesting of names and dictionary attacks which the act specifically prohibits, while violating another provision of the act? Aggravating violations increase the fines.

Are recipients who forward messages in "forward-to-a-friend" system liable under CAN-Spam?

l Are multiple senders of a single e-mail liable?

l Do post office boxes or commercial mail drops satisfy the requirement that commercial e-mail messages include a physical postal address?

l Is the act`s treatment of "from" line information sufficiently clear? Must the "from" line identify a sender by name?

Comments, which can be entered at FTC.gov, must be submitted by April 12.


An alternative

Some marketers are beginning to explore new means of marketing as a hedge against over-reliance on e-mail. Among the candidates: marketing through social or peer networks and Internet chat rooms. These techniques, which may target informal groupings of consumers with common interests, are less concrete than more traditional forms of marketing.

But they show great promise, says Craig Wilson, director of e-commerce for outdoor sporting gear retailer Patagonia Inc. Patagonia`s product experts have been participating in Internet chat rooms frequented by outdoor sports enthusiasts, where Patagonia not only learns directly about consumers` interests but also is able to display its expertise.

"It`s pretty powerful, because any dialogue online develops as word-of-mouth marketing," says Wilson, who compares chat room participation to meeting consumers at outdoor-gear shows.


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