MAPS Deal Reached; Harris Up Next

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Legal entanglements concerning anti-spam group Mail Abuse Prevention System LLC apparently aren't ready to end just yet.


MAPS and e-mail marketing firm yesmail.com announced last week that they had formally agreed on a new standard for double opt-in subscriptions and appeared to have avoided the kind of precedent-setting legal battle that many in the anti-spam and e-marketing community had hoped for.


But less than 24 hours before that announcement was made, MAPS was named a co-defendant in another lawsuit filed by Internet research firm Harris Interactive, charging the anti-spam watchdog and several ISPs -- including America Online and Microsoft's Hotmail unit -- with restraint of trade for blocking its ability to send e-mail to its users.


Harris Interactive, Rochester, NY, is charging that the ISPs improperly suspended its ability to send e-mails because of its listing on MAPS' Realtime Blackhole List. Harris is asking the U.S. District Court for the Western District of New York to force the ISPs and MAPS to lift the block.


MAPS, Redwood City, CA, vowed to "vigorously defend" itself and continued to assert its right to maintain a list of companies in its own database and the rights of the ISPs to decide whom to allow into its networks.


The Harris suit immediately follows MAPS' success in getting yesmail to agree to a 100 percent double opt-in protocol for future subscribers and a transition policy for its existing list members. That agreement, which ensures that yesmail will not be placed on the RBL, was an anti-climactic ending to the highly publicized scrap.


The announcement did not provide any details regarding a time frame for yesmail to convert to 100 percent double opt-in, a guideline that requires its customers to actively opt in for e-mail communications and then confirm that the opt-in was legitimate. The statement also failed to address whether and how current customers might be grandfathered into the new standard.


Anthony Priore, senior vice president of marketing at yesmail.com, Chicago, said those details have been worked out but he could not publicly divulge them. What is known is that yesmail has agreed to adopt MAPS' Basic Mailing List Management Principles, a list of seven guidelines for protecting Internet users from spam, including:


• Require e-mail list managers/owners and the mailers who use the lists to conduct confirmed opt-ins.


• Provide an easy unsubscribe option and adhere to it.


• Provide an offline way to unsubscribe.


• Disclose the nature and frequency of commercial e-mails.


• Follow a few other rules related to network delivery and the sale or transfer of e-mail lists.


It was not clear how many of these guidelines yesmail was already following before last week's agreement.


In prepared statements, company executives spun the agreement as a victory for both sides.


"We helped establish the permission e-mail industry and its best practices," said yesmail CEO David Tolmie. "We recognize, however, that as this industry matures, e-mail marketers need to ensure the protection of consumers."


The adoption of the confirmed, or double opt-in, protocol continues yesmail's adherence to the most current standard of permission marketing, he said. "We look forward to a very positive working relationship with MAPS going forward."


These comments were in sharp contrast to ones made only two weeks ago, when another yesmail official referred to MAPS as a renegade association and spoke sternly about defending its business.


In his statement, MAPS managing member Paul Vixie said he hoped yesmail's adoption of this protocol would be a catalyst for other e-mail marketers to comply with the standard.


"Our organizations are now in alignment regarding appropriate best practices," Vixie said. The same cannot be said, however, for Harris and MAPS.


Harris' lawsuit seeks injunctive relief and significant monetary damages from AOL, Microsoft's Hotmail unit, Qwest, Juno Online Services, Bell South and a handful of other ISP defendants. In specific, charges include anti-trust violations, interference with business, commercial disparagement, negligence, and defamation.


The ISP's blocking has affected 2.7 million of Harris's 6.6 million panel members, including 600,000 of which are active participants in its Internet-conducted market research, according to the suit. The company also said the suspension is preventing some parties from accessing Harris' Web sites and joining its interactive panel.


"MAPS and ISPs have created a process that permits them effectively both to deprive us of the use of our property without any due process, to interfere with our legitimate business activities and to allow our direct competitors to damage us without any recourse," Harris chairman/CEO Gordon Black said in a prepared statement. "The damage to us will be significant, and we intend to pursue redress to the highest courts if need be."


Harris accused competitor Incon Research, Norwalk, CT, of nominating the company for the RBL and named the firm in its suit as well. Incon officials did not respond to interview requests.


For its part, MAPS said it tried unsuccessfully to get Harris to adopt better standards of e-mail permission and practices and used the RBL as a last resort. Nevertheless, it believes it holds to the right to do business with only those companies it chooses.


"They are trying to take away Microsoft's and AOL's rights to do business with whomever they want and trying to force all of us to let [Harris] send unsolicited traffic across our networks," said MAPS spokeswoman Kelly Thompson.


Voicing MAPS' usual line of defense, Thompson said MAPS has no control over the ISPs that subscribe to the RBL. It is the choice of each of them to determine what traffic they allow into their systems.
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