• by Tom Hespos , March 9, 2004

According to ClickZ News, a lawsuit has been filed against BobVila.com and its marketing agency by a California ISP, charging that CAN-SPAM has been violated. I'm not going to try to defend BobVila.com. If they did use fraudulent headers and did omit a physical mailing address in their mailings, they deserve to have a suit filed against them.

But I will say that I'd like to see this law applied against the people who are causing the infrastructure problems that come with high volumes of unsolicited, incompliant e-mail. I'm glad that there's a law on the books that will help fight spam, but applying it against BobVila.com is like hitting up a kid's lemonade stand for state sales tax. Don't get me wrong - Spam is spam. But there are spammers committing abuses on a much larger scale, and I'd like to see some of these sleazebags taken down.

Last week, someone forged headers in a spam campaign and sent a bunch of e-mail, which looked to the layman to be coming from our domain - underscoremarketing.com. All week, we were plagued with e-mail addressed to non-existent accounts on our domain. Later, we received forged notifications that our e-mail accounts would be deleted. Furthermore, we ended up on certain blacklists, and official e-mail sent outside the company was tagged with "***SPAM***" in the subject line by some overzealous server-side spam filter.

I'd like to see CAN-SPAM enforced such that this particular spammer, who caused us untold headaches, is shut down permanently. But the identity of this spammer is a bit more difficult to ascertain than that of the BobVila.com e-mailer that irked the California ISP.

This leads me to my next fear - that CAN-SPAM will primarily be used to shut down legitimate e-mail marketers who are having trouble complying with the provisions of the law, and it won't do a darned thing to combat the spammers who are actively taking steps to conceal their identities. In short, legitimate marketers may be more at risk because they don't try to conceal their identities. If the enforcement of CAN-SPAM is aimed primarily at this low-hanging fruit, the impact on the consumer will be minimal, and the Super Viagra-hawking jerks that are threatening the very infrastructure of our beloved medium are going to continue doing what they're doing.

Legit marketers attempting to comply with CAN-SPAM can make themselves an easy target. There are the easy provisions to comply with, like including physical mailing addresses. There are also extremely confusing provisions, like managing unsubscribes. When someone unsubscribes after receiving a third-party offer, does that mean that they're opting out of all mailings from the list provider? From the marketer? Are they opting out of the specific offer that is being presented? Or are they opting out of all offers from that brand or company? This is all very confusing to the marketer, and even if they proceed in good faith and attempt to comply with all provisions of CAN-SPAM, someone on the receiving end might have a different interpretation of the law and bring a suit.

As I said, if BobVila.com did indeed violate the law, it deserves to have lawsuits filed against it. However, it does seem as if there's potential for CAN-SPAM to waste the majority of its impact on light offenders, as opposed to the real spammers who are creating infrastructure problems. If this occurs in practice, legit marketers will lose the channel while it remains wide open for the unscrupulous.