Controlling unsolicited bulk e-mail
Who's taking action? What's being done?
The banning of junk e-mail is a hot debate topic these days. Not only can junk e-mail be generally annoying, it is often costly for ISPs and their users. Then again, isn't this free speech? We explain the countering view points and the legislative solutions currently under consideration. (6,200 words, including three sidebars and extensive resources)
Spam, Spam, Spam, Spam, Spam, Spam, Spam, Spam.... The refrain from Monty Python's Flying Circus can be found on the Internet as an anthem of those who abhor junk e-mail and Usenet spam, as well as those who fiercely advocate the right of entrepreneurs to send advertising to anyone and everyone they choose.
Unsolicited bulk e-mail, and in particular advertising, is one of the hottest issues on the 'Net today. Many e-mail marketers have seen first hand the highly intense response that is generated by unsolicited commercial e-mail. Some are shocked and apologetically give up spam (see sidebar, "The repentant spammer") -- others find ways to insulate themselves from the criticism (see sidebar, "One man serving up spam.")
A 1,000-plus user survey published in April by World Research on junk e-mail (see Resources) provides a thumbnail perspective. The amount of junk e-mail received was rated moderate by 28 percent and heavy to very heavy by 39.5 percent of respondents. 43 percent hate it, while 25 percent consider it bothersome. Junk e-mail is not useful at all to 68.5 percent of respondents, and 66.5 percent thought it should be regulated.
Internet service providers (ISPs) are fighting what they call an escalating arms race with bulk mailers to defend their servers and their customers. Junk e-mail and related spam is considered the number one source of customer complaints. Legislation is now being considered in at least six states, and in May and June three bills (see table below) were introduced in Congress to respond to the problem. Under threat of legislation, established bulk e-mail marketers and the Direct Marketing Association (DMA) say they will deliver voluntary opt-out mechanisms that actually work, enabling consumers to stem the tide of bulk e-mail.
|Comparison of federal junk email legislation|
HR 1748 by Rep. Chris Smith, R-NJ, 4th District
the "Netizens Protection Act of 1997"
S. 875 by Sen. Robert Torricelli, D-NJ,
the "Electronic Mailbox Protection Act of 1997"
S. 771 by Sen. Frank Murkowski, R-AK,
the "Unsolicited Commercial Electronic Mail Choice Act of 1997"
|Basic Approach||Opt-in -- sign up or subscription required for commercial e-mail -- extends the junk fax ban but carves out an exception for those in an established business relationship, such as a vendor and its existing customers.||Opt-out on case-by-case basis for all bulk e-mail -- commercial, political, religious, etc. Possible future global opt-out or opt-in system if imposed by Internet standards body.||Opt-out on case-by-case basis, labeling of commercial e-mail, ISP filtering required.|
Consumers or ISPs may sue junk e-mailers for $500 per message or actual damages for unsolicited commercial e-mail. Treble (triple) damages if willful disregard proven.
|Sponsorship as of 7/15/97||
John E. Baldacci, D-ME 2nd; Tom Campbell, R-CA 15th; Walter H. Capps, D-CA 22nd; Eni F. H. Faleomavaega, D-American Samoa; Rodney Frelinghuysen, D-NJ 11th; Tony P. Hall, D-OH 3rd; Maurice Hinchey, D-NY 26th; Nita Lowey, D-NY, 18th; Carolyn Maloney, D-NY 14th; Robert Matsui, D-CA 5th; Collin C. Peterson, D-MN 7th; Bernard Sanders I-VT; Christopher Shays, R-CT 4th; Louise Slaughter, D-NY 28th; Dave Weldon, R-FL 15th
Lauch Faircloth, R-NC and Jim Jeffords, R-VT
In the wake of the Communications Decency Act fiasco, even those desperate for relief are leery of government intrusion on the 'Net. Privacy groups decry the intrusion of unwanted junk e-mail while simultaneously cautioning that some proposed solutions may create unregulated databases of consumer preferences. And some First Amendment advocates argue that while regulating junk e-mail is constitutional, it may set a precedent for restricting speech on the Internet.
On the other side of the fence are many Internet users and ISPs that believe they are waging an increasingly expensive battle against a rising tide of bulk e-mail that they never asked for and do not want to receive. They also point to the degradation of electronic communication. Even some e-mail marketers make the case that the current state of affairs keeps responsible firms from using e-mail appropriately for fear they will be labeled as a "spammer."
"It bugs the hell out of me to hear arguments that we don't want to restrict electronic commerce by banning spam. That is completely backwards," says Ian Oxman, a long time DMA member and the project manager for EHI, a joint venture funded by Experian (formerly TRW), Harte-Hanks, and IBL. The EHI collaboration brings together the world's largest credit information bureau (maintaining over 190 million credit records), a data processor building business-to-business marketing databases, and a communications/direct marketer in Harte-Hanks.
"I've been doing direct marketing for 10 years and worked with dozens of the nation's largest direct marketers. None of them use spam to sell their products because they know the kind of negative public reaction they would get if they tried it. They don't even use legitimate e-mail lists because of the fear that they will be perceived as spam," says Oxman. "The only way the industry is going to grow electronic commerce via e-mail marketing is to ban spam."
Oxman likens the DMA's opposition to any restrictions on marketing as similar to the National Rifle Association's opposition to a ban on armor piercing bullets. "Even though no responsible member of the NRA is using armor piercing bullets, they oppose regulating them. That's nonsense," Oxman says.
The cost of junk e-mail
Perhaps the central issue in the junk e-mail debate is cost shifting. Are practitioners of bulk e-mail advertising transferring the cost of advertising from the marketer to ISPs and individual recipients? Clearly the answer is yes, although some will dispute the magnitude of the costs being born by ISPs and consumers.
It certainly is clear that the major theme of bulk e-mail service providers is how cheaply advertisers can reach millions of potential buyers. And unlike the Web, where an advertiser must entice a consumer to come to them, e-mail enables them to "reach out and touch someone," whether they want to be reached or not.
In words taken from one bulk e-mail service firm, "These e-mail addresses are not targeted. To do well in the direct e-mail business you have to learn to play the numbers game. The more people you mail your sales letters to, the more responses you'll get, simple as that!" Or more concisely from the home page of Integrated Media Promotions Corp. (IMPC) -- "Spamming For Gold!"
The problem is that while it is very inexpensive to send 100,000 to 1 million solicitations via e-mail, it is costly for those who process and receive it. In numerous public forums, including the May 1997 FTC Workshop On Consumer Information Privacy, America Online (AOL) stated it has invested many hundreds of thousands of dollars in developing systems and hiring staff to deal with Internet abuse issues, says Ray Everett-Church, an independent contractor to AOL and co-founder of CAUCE, the Coalition Against Unsolicited Commercial Email. The consortium of system administrators, Internet activists, and consumer activists was founded in April of this year.
Justin Newton, senior network architect for Priori Networks and formerly with Erols, estimates that Erols spent approximately $150,000 over the last year to combat spam. That includes personnel costs and hardware and software upgrades.
|Junk e-mail costs to ISPs and consumers|
"The number one source of customer complaints is spam," says Don Schutt, vice president and general manager of Concentric Networks, which operates in 50 states and Canada.
This situation is echoed by a wide rage of ISPs, both small and large. Earthlink, for instance receives 1,000 to 3,000 junk e-mail related complaints a day. "As far as hours go, there is a lot of time devoted to junk e-mail on a daily basis," says Harris Schwartz, information security administrator for the firm.
Concentric now allocates five full-time staff people to its abuse team to track junk e-mail and respond to customer complaints. Much of that is due to forged headers that make junk e-mail appear to originate from the Concentric domain. Concentric estimates they lose one staff week per month cleaning up after spam events and two staff months per year in coding and configuring software to block spam. And Concentric doubled the number of computers necessary to run its service because of the need to segregate internal and external mail functions to control junk e-mail.
Another cost is the loss of customers due to its shutting off remote mail forwarding, says Darrel Baker, a Concentric senior system engineer. This prevents junk e-mail from being relayed via Concentric's servers. The side effect, however is that some customers who access the Internet while at the office and periodically connect, via the 'Net, to their personal accounts at Concentric in order to read and also send personal e-mail, can no longer do that, and changed ISPs as a result.
Perhaps it is not surprising, given the level of intensity generated by junk e-mail, that innocent customers are affected. And in some cases, the strict application of stringent acceptable use policies may be restricting legitimate business practices (see sidebar, "Innocent casualty in the junk e-mail wars?")
"This is literally an arms race. We get a little better to block spam and then junk mailers figure out a strategy to get around it. We implement a response to the new strategy, and then they come up with something new," says Baker.
"As the sophistication of defenses rise, not only are we spending a lot of money on systems and staff, but we are in some sense degrading performance -- slowing things down and adding latency. That is exactly what people have spent years trying to engineer out of their networks," says Concentric's Schutt.
Small- and medium-sized ISPs bear an even heavier day-to-day burden from junk e-mail than do larger providers, says Deb Howard, principal of 2cowherd.net based in Venice, CA, and chair of the board of the Internet Service Providers Consortium (ISP/C), an 80-member organization consisting mostly of small- and medium-sized ISPs. Junk e-mailers often consider smaller ISPs easier prey because they have fewer resources to throw at the problem.
Bellingham, WA-based Network Access Services has been used as a mail relay for junk e-mail, has had a couple of users send out junk e-mail, and has had a valid account of a domain it serves forged into the headers of junk e-mail. As with regional and national service providers, junk e-mail is the number one source of user complaints.
"I see a lot of hate from NAS users that send mail to me saying, 'Please make this stop!'" says Bob Finch, a principal with NAS. One of the greatest frustrations is the inability to get off the lists, regardless of offers to remove people who request it.
NAS now filters about a dozen domains that seem to only generate junk e-mail and checks to see if incoming mail is from a legitimate domain. It has also put much tighter restrictions on remote mail forwarding.
Another less tangible cost to users is the degraded human quality of Internet communication. Some newgroups, for instance, that were vibrant with discussion between individuals have been abandoned to spam, killing off the beneficial use of those groups.
"There you have hundreds of spammers all shouting at the top of their lungs, but no real participants are there to hear it," says Finch. In a very real sense, as spam succeeds, the intended purpose of the Internet is eviscerated. The increasing use of fake e-mail address to protect the user from being put on junk e-mail lists further degrades communication.
"It is fun for now to look at log files and see that anti-spam measures have killed a hundred or so messages," Finch says, "but the arms race will continue. They will find workarounds, and we will have to spend more time and money."
No effective recourse
Some successful court cases (see Resources) have been brought against higher profile bulk e-mailer, such as Cyber Promotions, but those in the trenches say that current legal recourses are ineffective.
David Kramer, an attorney with Wilson Sonsini Goodrich and Rosati who represented Concentric Networks and CompuServe in junk e-mail related litigation, says it is not cost effective even for larger ISPs to go after well-known bulk e-mailers. Concentric, for example, spent far more in attorney fees and costs than they recovered in damages from its judgment against Cyber Promotions.
"That action was against a single, known spammer. There are thousands of such companies, and the number is growing. And then there are the fly-by-night companies that are hard to track down and are nearly judgment proof. Without good legislation you'll have to sue all these companies to protect yourself, and that simply is not cost-effective," Kramer says.
Again, the situation is worse for smaller ISPs without the money to fund such action, says ISP/C's Howard.
"If someone says we can recoup damages via the courts for such actions without new legislation, I would love to have their help in doing so. I know of no small ISP that has been able to recoup damages commensurate with the impact on their business. In fact I only know of one small ISP that has recouped anything, and that was for a small amount. It takes money to litigate these things and small- and medium-sized ISPs simply don't have the resources," she says.
Both Howard and Kramer note that the individual consumer is left completely without effective recourse.
Legislation now pending could level the playing field a bit, but there is considerable variation in the approaches at the federal level, and state legislation varies widely as well. Professor David Sorkin of John Marshall Law School, who summarized and provided links to the major spam-related lawsuits noted above, also provides status summaries and links to state and federal legislation (see Resources).
Nevada, Colorado, New York, Massachusetts, Connecticut, and Rhode Island, have or still are considering state bills, and draft legislation is circulating in California but has not yet been introduced. In spite off the best efforts of legislators, a lot can happen to a bill. The old cliche about not watching sausage or laws be made still rings true. The Colorado bill, which sought to ban junk commercial faxing and e-mail was changed just before enactment to drop junk e-mail. In the judgment of Kramer, the Nevada bill went from bad, to great, to worthless in its journey through the Senate and State Assembly. Just before passage, an amendment changed it from a ban on junk e-mail to a bill requiring e-mail advertising be labeled as such and offer an opt-out mechanism.
The justification for state bills, says Kramer, is that they can usually enact legislation more quickly and build momentum for federal action. That is what happened during the 1980s, before federal legislation was passed to ban junk commercial faxing.
At the federal level, three bills were introduced in May and June of this year. They are:
Senator Murkowski's bill is the most generous to bulk e-mail advertisers and is supported by some in the bulk e-mail industry. It requires unsolicited junk e-mail be labeled as advertising, that the sender is accurately identified, and that an opt-out mechanism be provided. Beyond that it also places significant burdens on ISPs to filter junk e-mail for its customers and to comply with FTC investigations. The FTC, state attorneys general, and private lawsuits are authorized for enforcement. The bill has two cosponsors in the Senate, but there is no equivalent bill in the U.S. House of Representatives.
"Senator Murkowski is not interested in banning things on the Internet," says a spokesperson who preferred not to be named. Even though Murkowski voted in favor of the junk fax ban, he believes junk e-mail does not present an equal burden on the consumer. He sees a continuum with junk faxing on one end, junk phone solicitation at the other end, and junk e-mail as somewhere in between the two.
"When you receive a junk fax it ties up your fax machine and you cannot receive anything else while the fax machine is tied up. With e-mail, you can still receive the e-mail you want when people are sending you junk e-mail," says Murkowski's spokesperson.
The Torricelli bill, introduced roughly one month following the other two, is the most complex of the proposals. It bans harvesting e-mail addresses from ISPs whose policies forbid such practices, requires senders to accurately identify themselves, requires an opt-out mechanism, and also requires that e-mail marketers respect a "prior notice" by consumers opting out. Additionally, it empowers some Internet standards body to craft some future plan for e-mail advertising.
David Hantman, chief council to Senator Torricelli, says the prior notice provision should work well for large, well-known e-mail marketers, allowing Internet users to opt out before they receive junk e-mail. And he says empowering the Internet community to come up with something better in the future gives the Internet community the power to regulate itself. The FTC and private lawsuits are authorized for enforcement. As yet there are no cosponsors and no U.S. House equivalent.
"Rather than banning it all we decided to ban the worst practices and then allow the Internet community to work on the rest. Our approach was to make sure consumers could effectively reply to the people that send them mail so that they can say, 'Get me off your list.'" Hantman goes on to say, however, that the bill does not explicitly provide for a generic opt-out provision. "Each individual e-mailer will be able to send you one e-mail before you respond and say, 'Take me off your list!' It is a one bite at the apple approach."
The central reason Senator Torricelli did not want to extend the junk fax ban to e-mail, as advocated by Representative Smith's bill, is that "he wanted as little government regulation as possible to solve what is clearly an increasing problem. We wanted the government to empower the consumer to handle it themselves," says Hantman.
Representative Chris Smith's bill is the shortest and simplest bill and the only one that does not create governmental enforcement powers regarding Internet activities. It extends the highly successful federal ban on junk commercial faxes contained in the Telephone Consumer Protection Act of 1991 to cover commercial junk e-mail. This effectively requires consumers to opt in to commercial e-mail rather than placing the burden on consumers to get off the list after they begin receiving junk e-mail. It also carves out an additional exception, exempting parties with an established business relationship, such as vendor/customer. It only authorizes private right of actions -- lawsuits by consumers or ISPs -- to enforce the ban. There are 15 cosponsors in the U.S. House but no Senate equivalent to date.
"Our bill is the only one that explicitly provides for an opt-in plan and doesn't create direct governmental enforcement powers," says Jerome Bishop, legislative aid to Congressman Smith's office.
CAUCE, the ISP/C, and a variety of individual Internet activists and ISPs have lined up behind the Smith bill to require opt-in and ban unsolicited junk e-mail.
"Those that fought against the CDA ought to be happy to see the approach of the Smith bill," says CAUCE's Everett-Church. "Being forced to bare costs of e-mail you never asked for and do not want is anathema to individual freedoms, and 'Net libertarians should be very supportive of the Smith bill. This gives individuals the right to defend themselves without giving government any coercive power."
In Professor Sorkin's opinion, anything that does not ban junk e-mail will legitimize or destigmatize it. "If we end up with a bill like the Murkowski bill, or possibly the Torricelli bill, or the final Nevada Assembly bill, what we will see is a lot of direct marketers coming into the e-mail business. Legislation that makes it clear how to do unsolicited bulk e-mail in an officially sanctioned manner will produce an extremely high volume of e-mail solicitations," he says.
The Center for Democracy and Technology, a non-profit civil liberties organization working on First Amendment and privacy issues, agrees strongly that junk e-mail is a serious problem, but is very hesitant to endorse any of the current proposed solutions, says Deirdre Mulligan, CDT's staff council.
"Our concern is not to take an old solution developed for an old medium and try to slap it on the Internet, but rather on how to maximize both the First Amendment and privacy in this new medium," Mulligan says.
As a privacy advocate, Mulligan is concerned about the unintended consequence of opt-out or opt-in solutions -- that they may lead to more personal consumer data being collected and stored. An opt-out approach doesn't serve the full range of privacy concerns because it does allow one bite at the apple. With thousands or hundreds of thousands of e-mail messages a day that would still be too much of a burden, she says. On the other hand, a whole new privacy concern is created by pushing people to opt into lists in order to receive information.
As a First Amendment advocate, Mulligan argues that U.S. activists concerned with unsolicited commercial e-mail need to take a global perspective. In this country people are concerned with unsolicited commercial e-mail. In other countries that is not their primary concern. China, for instance, is concerned about information regarding democracy, she says.
"The U.S. administration is now saying Internet content should not be regulated, which is a welcome change from their position on the CDA. For the Internet community to then ask the government to ban a class of commercial speech is a step backwards," Mulligan says.
Going further, she argues that banning a class of commercial speech would undermine U.S. calls for China to open up political speech on the Internet, or for France to not discriminate against English language speech on the Web.
The general consensus from public policy and Internet activists is that significant progress on these bills will certainly not be made in 1997, although some hold out hope for meaningful action in 1998.
John Marshall Law School's Sorkin and others say that the FTC is looking for more work to be done by the Internet community before they will recommend any action, perhaps due to the fall out over the CDA.
"The FTC says they want to wait a few months for people to discuss private solutions -- self regulation by the industry or technical solutions. I don't have much faith that self regulation will do much to solve the problem, and I expect the FTC does not as well, but they are going to give that some time," Sorkin says.
Another consensus issue is that the Internet community needs to patiently, but immediately educate their state and federal representatives. Indeed Murkowski's office went as far as recommending that constituents not send e-mail but rather write a letter, perhaps including a few examples of the junk e-mail received.
About the author
Barry D. Bowen is an industry analyst and writer with the Bowen Group Inc., based in Bellingham, WA. Reach Barry at email@example.com.
Last updated: Friday, August 08, 1997
At least that's the tail of one very repentant junk e-mail marketer. Over the course of a few weeks, Chris Guglielmelli, president Chair-Pak U.S.A., took one heck of a roller coaster ride. The principal of a fledgling backpack manufacturer thought he stumbled on the key to Internet marketing, instead he became locked in the gun sights of junk e-mail recipients that were fed up and weren't going to take it any more.
"Shortly after I started the company, one of the junk e-mail messages I received was from Cyber Promotions, saying I could reach millions of people for only a few dollars. Well that was exactly what I wanted to do," Guglielmelli says.
Unfortunately, he did not get the software to work properly during the free 10-day evaluation period. Otherwise, he says, "I would have done one small mailing and realized that it was going to tear my heart out and wouldn't have touched it again."
Missing that opportunity and not knowing what awaited him, he downloaded the software, paid for it, and prepared to rock-n-roll. He set up the computer and had it spew out e-mail advertisements from midnight to 6 a.m. in late June -- approximately 120,000 messages.
Amazingly, no one at Cyber Promotions warned Guglielmelli that there might be angry responses, he says. Not only did his e-mail advertisement provide a correct return e-mail address, but it also pointed people to the Chair-Pak Web site (see Resources above), where Guglielmelli's home and office phone numbers are prominently displayed.
It did not take long for responses to start rolling in.
"The computer finished sending out e-mail at 6 a.m. At 6:05 I got a phone call from England. By 6:45 I had about 30 phone calls from all over the world by people angered by my spam. I didn't even know what spam was. I also didn't know what 'flame' meant, but I learned quickly," Guglielmelli says.
"I also got a call from some big-wig at the InterNIC saying the international lines were locked up pretty tight with my spam and that it was difficult to get messages back and forth. He was not happy. I apologized and said it would never happen again."
Guglielmelli had simply expected people to send e-mail back with "remove" in the subject line if they wanted to be taken off the list. Few did so, while about 1,200 sent angry e-mail complaints, including e-mail barrages over several days.
"Since angry feelings carry more weight than good news, I figure I got a half a million people thoroughly pissed at me. That's just not worth it. My partner was turning white over the e-mail we received. My ISP nearly cut us off, and I had to meet with them personally to explain what happened. The company hosting my Web site was also upset."
His trouble did not stop there, however. Some of the irate callers tried to be helpful after Guglielmelli apologized. They pointed him towards newsgroups as the right place to advertise. Don't spam newsgroups, they recommended. Find appropriate topics and post advertisements there.
"I got throttled again because I selected newsgroups too broadly. Like I posted to sports-related groups thinking backpacking was relevant, but then found out a group might only be interested in sports on television. I had just finished apologizing for e-mail spam, and now it looked like I turned around and spammed Usenet," he says.
Seeing that he misstepped yet again, Guglielmelli took the time to directly respond to each newsgroup flame or complaint, being meticulous at not cross-posting his responses but rather responding on-point to each message. He also became active on the net-abuse newsgroup to respond to criticism.
Guglielmelli now says he has people wishing him well and taking a look at Chair-Pak products, but he came very close having an all-out boycott organized against him.
"I think the Internet is an excellent marketing vehicle, but it is certainly confusing to figure out how to use it," he says. "It is an awesome place to do business and once I figure it out I'll certainly use it. Right now we are actively developing cross-links to other Web sites and being as careful as possible to responsibly use the 'Net."
One such marketer -- we'll call him Mr. Smith because he spoke on the condition of anonymity -- runs a marketing consulting and technical services firm for multilevel marketing programs that target people interested in developing a second income. Of the firm's 100 clients, 25 now employ bulk e-mail marketing campaigns.
"We were actually forced into this by demand from customers and prospective customers. Over the course of two weeks we probably got over 100 phone calls asking about bulk e-mail. Up until that time we were only doing Web sites for network or multilevel marketing firms," says Smith. "Until recently I was in the camp of people that did not like unsolicited bulk e-mail, but it really came down to a dollars and cents point of view. There is a lot of money that I was leaving on the table as a marketer."
The bottom line in Smith's opinion was these firms had legitimate offers and wanted to spend good money to get their message out. If his firm did not take their money and help them implement bulk e-mail campaigns, they would simply go elsewhere.
Accepting the business, Mr. Smith's firm researched a few options for implementing bulk e-mail campaigns, selecting Integrated Media Promotions Corp., one of the founding members of the Internet Electronic Mail Marketing Consortium (IEMMC).
Smith's firm functions as a consultant/manager for the bulk e-mail efforts of its clients and uses IMPC to send and receive e-mail and to manage recipient lists. The client is thus two steps removed from the actual junk e-mail.
"It is really not hard to protect our clients from the harassment of people who are opposed to bulk e-mail -- the people that send e-mail bombs, send angry responses, or try to hack into servers," says Smith.
IMPC has set up filters to process incoming mail. With early mailings, remove requests were accepted via e-mail. Positive responses and proper remove requests were processed, while all other mail including the angry responses were filtered to the trash.
"It was important to us," says Smith, "that the bulk e-mail distribution firm would honor remove requests. At least they say they do, but since we don't control the lists there is no way to know for sure," he concedes.
With IEMMC members now telling recipients that they have to go to the IEMMC Web site to request removal from bulk e-mail lists, members such as IMPC may simplify their filtering tasks into just two classes of e-mail responses -- positive responses and irrelevant mail to be trashed.
The average client mailing is 200,000 to 300,000 e-mail addresses at a time, and IMPC guarantees a .1 percent positive response rate, Smith says. On a typical mailing Smith sees about a .5 percent positive response for his clients. These are the only responses that he ever sees because IMPC has been handling remove requests -- about two to three percent on a typical mailing -- and angry mail is simply trashed without human intervention. Statistics are not kept or at least not disclosed, on the complaints.
In Smith's opinion, if bulk e-mail marketing works, people are going to do it. In one case the corporate headquarters of the $300 million multilevel marketing program for carcinogenic-free personal care products officially says it does not support the use of bulk e-mail. Privately, says Smith, the corporate stance is, whatever distributors need to do to build their business is up to them. One of those distributors is a client actively using bulk e-mail.
Smith, however, does not advocate the "spam-at-all-costs" position of some marketers and says actions like forging headers and stealing bandwidth ought to be stopped. He endorses a global opt-out list, and favors Senator Murkowski's bill to label bulk e-mail as advertising so that ISPs can easily filter out such mail on the request of customers.
That said, he also thinks ISPs who take it upon them selves to block domains from which bulk e-mail is sent are arrogantly overreaching their authority. "Since there are no laws or regulations prohibiting it, I think ISPs are taking it upon themselves to decide what people can and cannot read. That seems to be a bad thing."
One Internet marketer that believes she is being inhibited from engaging in legitimate e-mail distribution is Sandra Kinsler, editor and publisher of Woman Motorist, a Web-based magazine. Kinsler also teaches Internet marketing at the University of California at Santa Barbara.
"I am infuriated by junk e-mail from people like Cyber Promotions because it is the actions of firms like them that cause some ISPs to block legitimate business practices," she says.
Here is the scenario: Last month Woman Motorist sent out 10,000 press releases via e-mail to a list of what Kinsler called bona fide journalists. The list targeted people that work at a woman's publication, are interested in automotive issues or woman's issues, work for automotive magazines, or for publications covering the Web. That mailing resulted in 150 people asking to be removed from the distribution list -- two retaliated with high volumes of e-mail. One of those who retaliated did not know that their boss specifically asked that his subordinate be placed on the distribution list and the person in question has since asked to be reinstated for future press releases.
It also produced a demand from the publication's ISP that they stop sending out unsolicited commercial e-mail.
We would never send out mass e-mail promoting our publication to a general audience," says Kinsler. But working journalists are fair game because that is their job. "I believe that as an established publication, we have the right to send press releases to relevant journalists without their prior permission.
"As long as I am conducting a standard business practice, such as sending out press releases to a bona fide journalist, then that is not junk e-mail," she says.
Somewhat ironically, the junk e-mail solution supported by Woman Motorist's ISP and Web hosting firm -- Rep. Chris Smith's extension of the ban on junk faxing to include junk e-mail -- would probably not preclude Kinsler from doing what her ISP now forbids.
Jerome Bishop, a staffer in Rep. Smith's office, in a conference call with Kinsler, said he does not think distributing legitimate press releases to journalists is unsolicited commercial e-mail and would thus not be banned under the Smith bill's mandatory opt-in solution.
"The dissemination of information is different than advertising products or services for sale, especially when you are providing information to people whose job it is pay attention to that information."
Perhaps the most frustrating thing for Kinsler is that she believes she made it absolutely clear to her ISP before signing on with them that she would be sending out press releases in this fashion.
"We're not a litigious group, so we're preparing to move to another ISP," she says.