October 20, 2000

The "Spam" Wars

Dropped Lawsuit Highlights E-Mail Privacy, Freedom and Ethics Questions

By Matt Elzweig

It is an ongoing skirmish known perhaps only to IT professionals, companies and associations that have internal computer networks. But as obscure as it may seem, it is a conflict laden with issues pertinent to all Internet users worldwide.

It is the fight over what does and doesn't constitute "spam" and "spamming" and the fight over anti-spamming services being used by ISP's and organizations to block unsolicited mass mailings to their networks.

The issue came to a head in early August, when Harris Interactive, one of largest interactive marketing firms, filed a lawsuit against AOL, also naming Microsoft which owns Hotmail and the controversial anti-spamming group, MAPS (Mail Abuse Prevention System) as co-defendants.

The suit charged that the Realtime Blackhole List, one of several anti-spam services offered to subscribers by MAPS was in violation of the "conspiracy in restraint of trade" portion of the Sherman Antitrust Act.

On September 11, Harris dropped the suit, but questions of legality, privacy, freedom of choice and ethics continue to surround the practices of systems offered by groups like MAPS, that aim to eliminate so-called "spam."

PostMasterGeneral.com, an ISP that provides e-mail list management and delivery services, defines spam as, any "unsolicited commercial e-mail sent to a recipient who has not provided their email address directly to the sender, or an e-mail sent to a recipient who would not have a reasonable expectation of receiving e-mail from the sender."

Forbes' Kiri Blakeley explained the way these systems work in the magazine's September 18 issue. "To block spam, large ISPs and corporations use a multi-tiered system of filters and list of known spammer addresses and sometimes even staff who can recognize incoming spam and manually thwart it" Blakeley writes. The former method describes the basic concept behind the services offered by MAPS, perhaps the most well-known of the anti-spamming groups.

Founded in 1997, by a former network service consultant Paul Vixie, MAPS, a not-for profit company, based in Redwood, California, is best known among advocates and opponents for its RBL (Realtime Blackhole List). Blackholes are intentional network outages that subscribers to the MAPS RBL system can use to limit the transport of what MAPS calls "known-to-be unwanted mass e-mail" to their networks.

Kelly Thompson, MAPS Press Contact, explained her organization's position in a recent interview. "We believe it’s pretty simple. We own the servers that carry our e-mail, and so we as the owners have the right on our own servers to accept or deny any traffic that we choose. We believe that our servers and the networks that they're connected to are private property. It's no different than if someone comes to your door; just because they knock, doesn’t mean you have to let them in. If someone wants to send me e-mail, that doesn't mean I have to accept it."

She described it as an issue of choice. "It basically comes down to our freedom to say what we want, to establish those standards and make those standards known, and to use and control our own private property."

But many others feel that the MAPS RBL has overstepped its bounds. In reference to the lawsuit that his company filed against MAPS and others, Dan Hucko, Vice President, Director of Marketing Communications for Harris Interactive discussed his objection to the system, "These ISPs were acting as censors" he said.

Harris Interactive, which has been publishing the Harris Poll since 1963, began taking Internet-based polls and surveys in 1998. "We started to realize that the Internet was really going to be the new way for people to collect market research and data" Hucko said.

According to Hucko, Harris was profoundly affected by the MAPS RBL. Hucko says Harris first realized the problem in early July 2000. "We started to notice that our responding rates for our surveys were dropping fairly dramatically" he said. According to Hucko, when Harris began receiving email messages saying that mail had been bounced back, they "quickly realized that," their, "mailings had been put on the MAPS RBL."

Hucko firmly defends the mass mailings that Harris uses to gather data for its surveys and polls and says that they are not spam. "We do not spam. We do not condone it" he said. According to Hucko, recipients of these e-mails have signed up to receive them and have "actively participated in surveys in the past."

Hucko illustrated the process of correspondence between Harris and the people who answer its surveys online. "In each and every communication that we send to our panel members, we give them very clear and easy to understand instructions, right in that e-mail, on how to opt-out of our database" … "You would click on a link , it would take you to a web site where you type in your email address and you will be removed from the database. It's very simple."

As soon as Harris realized they started contacting ISPs and asked why those ISPs were blocking their mailings. They explained the process of their mailings and specifically that recipients had signed up for them. Around the same time they tried to contact MAPS and explain why they felt the RBL wasn't right. They received no response and MAPS failed to unblock any of their mailings.

"We had been blocked from communicating with over 2 million people. It was affecting our ability to conduct business and to do research" Hucko said.

Hucko says Harris' decision to drop the suit against MAPS and others (Hotmail had been dropped from the suit earlier) on September 11, was due to both legal costs and a positive response from ISPs and other organizations that were causing mail-blockages. "While the complaint was still active, we continued very vigorously our conversations with the ISPs and the other organizations like AOL, trying to get them to unblock our mail. And a number of them did that – our mail started to flow."

According to Hucko, a decision by Microsoft Hotmail to unblock Harris' mailings on 9/7/00 significantly influenced the corporation's decision. "At that point we had 98.4% of our panel that we could now communicate with. We decided it was in the best interest of the company and our shareholders to end this expensive litigation."

Nonetheless, the people at MAPS are not discouraged about the case nor about many users who have voiced their grievances against the RBL, in the media and in court. According to Thompson, MAPS has not experienced any significant loss in clientele as a result of the case. "If we did, they didn't let us know" she said. In fact, Thompson says, MAPS has benefited from the lawsuit. "If one thing happened," she said, "it's that we got a whole more attention."

John Mozena, who is Co-Founder and Vice President of the Coalition Against Unsolicited Commercial E-Mail (CAUCE), an internet-based organization dedicated to the passage of federal legislation to deal with spam, agreed that the Harris case helped MAPS and that the MAPS organization actually invites litigation. Mozena says that MAPS and his organization are closely allied and interact frequently.

"The issue is still out there and MAPS has been very honest for a long time that they hope someone will sue them and take them to court, because they believe in what they're doing … they want to set a precedent that what they're doing is legal behavior" he said.

Mozena also pointed out that none of the companies on the RBL have followed a suit to completion. This he says, indicates that even the attorneys of these companies feel that MAPS is "in the right and that there is no case against them."

According to Mozena, "They would love to make case law, but no one has followed through." In the future, he hopes that MAPS will be sued through to the final stages of litigation. "I think MAPS would win" he said.

So far, CAUCE's own efforts to pass legislation regarding spam, have achieved modest success. Earlier this year, the US House of Representatives passed a bill drafted by CAUCE by a 427 to 1 vote.

The bill, HR3113, which is scheduled to be reviewed at a committee hearing in the Senate at a yet to be determined date, "would let companies that provide e-mail to their employees and organizations prohibit the sending of spam to their users and back that up in court" according to Mozena.

But other groups feel that so-called "spammers" listed on the RBL don't deserve to be there. Jeff Richards, Executive Director of the Internet Alliance, which is a wholly-owned subsidiary of the Direct Marketing Association spoke for members of his organization on the issue. MAPS he says, has "gone beyond their original charter" and this is the real controversy.

"Some of the folks don't deserve to be on the list" he said. This "original charter" was, according to Richards, "to protect ISPs from unnecessary mass mailings"…. "MAPS and other groups may have exceeded their original good intention" he said.

"Historically," he explained, "volunteers and others have come together to stop real egregious cases of Spam", but these were not reputable marketers. They were actually, "mailers whose goal," was "to stuff messages into any and every email box without any regard or thought to whether the receiver would want it or not."

Also, what is defined as "spam" is subjective, Richards said. Describing a hypothetical porno site, Richards said: "1% of us who get 'lusty babes' would click on it, 1% of those people would go to the site, and 1% of those people would actually go to the site and pay $10 to see it" he said.

The Internet Alliance sees a problem with the amount of power that volunteers in MAPS and similar organizations are wielding. "It’s fine for MAPS to have a personal opinion. It's not fine for MAPS to turn individual voices off and on, on the Internet" Richards said. "This degree of power – deciding who gets to speak and who doesn't - there has to be due process, that's a part of American law."

Interestingly, some marketing firms actually support anti-spam systems like the RBL. One such firm is .Com Marketing, located in Orlando, Florida. .Com provides strictly Internet-based marketing services for a list of clients that includes such recognizable names as Marriot Vacation Club International, Tollman Hundley Hotel Group, Tribune Interactive (the online edition of The Chicago Tribune) and MP3.com among others.

Jeff Lamm, Interactive Media Director at .Com, says his firm does not use unsolicited mail in the marketing services provided for their clients. According to Lamm, .Com uses what is known as a double-opt-in process, which requires recipients to confirm whether they want to want to receive mass mailings twice, a process that is at the heart of the controversy, since groups like MAPS include it as one of their standards for proper commercial mass email conduct.

Not only does his firm refrain from using spam, they are against it, and they are for systems like the MAPS RBL. "I used to feel a little more ambivalent, but I'm definitely more for this type of system than I was" he said … "I think they're important."

Lamm feels that not only is spam wrong from an ethical standpoint, but that using spam to advertise actually has a negative affect to brands and industries trying to gain new clients, and the Internet industry in general. "If you harm the industry or you harm the process through spam, than it hurts everybody else; one bad egg hurts the whole flock" he said.

Lamm explained what he feels is unsound logic on behalf of advertisers who spam. "The justification is that if you can reach a lot of people by spamming them, it's much cheaper then sending an individual message, but if we were to represent one of our client's brands this way, it would provide a negative connotation for that client" …. "We definitely stay away from spam and we do."

So far, the future of spam and the anti-spamming movement is uncertain, but groups on both sides of the issue continue to garner support and to make their voices be heard.



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