Playing the Spam Legalization Game

Editor’s note: One of the more interesting revelations at the Federal Trade Commission’s recent spam forum was that there is not yet a universal definition of the word “spam.” Anti-spammers have their definition, and many think marketers are trying to redefine the word for their own purposes. Many marketers will say otherwise. This is one anti-spammer’s opinion on the situation. We welcome feedback to [email protected]

The word “spam” means “unsolicited bulk e-mail.” Unsolicited means that the recipient has not granted verifiable permission for the message to be sent. Bulk means that the message is sent as part of a larger collection of messages, all having substantively identical content. But ask a spammer and he’ll claim spam is something else.

The anti-spam community was caught off guard, not realizing that spammers were trying to redefine the word “spam” in order to confuse lawmakers and legalize unsolicited bulk e-mail. Out of the blue, spammers began touting a new definition, redefining spam to mean “that which we do not send.” Spams appeared claiming “this is not spam since we include a way to be removed” or “this is not spam since it is not a scam.”

The notoriously pro-spam Direct Marketing Association, whose president, H. Robert Wientzen, had stated, “We see [spam] as freedom of commercial speech,” was quick to realize that it could spin-doctor the word “spam” to make it not apply to its members. Hence, to everyone’s surprise (or not), the DMA stated that spam was “only porn and scams, sent fraudulently,” and all normal spam was magically “not spam.”

Few in the anti-spam and ISP communities saw the trick coming, since spam has always been unsolicited bulk e-mail, and the issue is not about content, it’s solely about delivery method. The content of spam is and has always been irrelevant. If it’s sent unsolicited and in bulk, it is spam – plain and simple. All ISP contracts ban the sending of unsolicited bulk e-mail, Webster’s dictionary defines spam as unsolicited bulk e-mail, every anti-spam organization has always defined spam as unsolicited bulk e-mail.

When Congress calls in consultants to consult on new anti-spam laws, it doesn’t call anti-spam organizations or e-mail systems consultants, it calls the DMA as the U.S. government’s “authority” on the spam problem. Like drunk drivers consulting on drunken-driving laws, the DMA happily tells Congress spam is “not spam” in order to get Congress not to ban but to actually legalize the sending of unsolicited bulk e-mail.

Hence, the government has almost no chance of bringing in an anti-spam law this year, since Congress listens only to who lobbies with the most funds, and the DMA always wins by many miles. There is now the strongest chance ever that Congress in its confused state will do exactly the opposite of banning spam.

What will happen is that Congress will quickly bring in a law edited by the DMA. That law will allow spam (because the DMA is telling Congress that “spam is not spam”) and will merely have sanctions against the sending of spam with fraudulent headers (sanctions that already exist in most state laws, anyway). Congress will tout it as an anti-spam law but it actually will be a pro-spam law, finally legalizing the sending of unsolicited bulk e-mail.

At that point, in effect a law will exist saying, “You CAN spam, just don’t use fake headers.” It will unleash the 23 million small businesses in North America alone that suddenly will be allowed to spam backed by a law saying so. The spam problem will go from “terrible” to “meltdown of the e-mail system” four to eight months later.

Congress then will be forced to rush in a new law to counter the disastrous effects of the first and properly ban spam. So we will eventually get the anti-spam law we want, but it looks very probable that we will have to let Congress make the mistake in order for Congress to learn from the mistake.

But there is an advantage to the anti-spam community in letting Congress go the DMA’s route. With a DMA-backed pro-spam law, this whole spam problem will implode and self-terminate as the entire online population revolts not just against the lawmakers but against direct marketing itself. The staggering volumes of spam that Internet users will be subjected to by the DMA’s members – who will predictably claim in every spam that “This spam is not spam and the law says so” – will turn the public against all direct marketing.

The public will hold direct marketers responsible for the annihilation of e-mail as a communications medium, and that in itself might bring us a new dawn where direct marketing discovers ethics and stops treating the Internet as an infinite pool of suckers trained to press “delete” all day.

The DMA is shooting itself in both feet. Should we stop it?

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