• by Ross Fadner , July 1, 2004

Email marketing and spam came to the fore this week as the federal Can-Spam law received a six-month review, and the Federal Trade Commission said that it's reviewing the potential for implementing a bounty system on spammers who perpetuate the scourge.

Email marketers are the understated few that have benefited from the new anti-spam law, but they say the possibility of a bounty system could raise their complaint ratios, and effectively put them back in the same murky situation they found themselves in before the Can-Spam law took effect on January 1.

The FTC is required to review the legislation and implement additional measures if it proves to be ineffective. Among the additional measures were a do-not-email registry, which the commission ruled out as a possibility last month, and the possible creation of a "bounty system" to promote enforcement of the law. Under the proposed bounty system, consumers who bring spammers to justice would receive 20 percent of whatever civil penalty the FTC is able to collect based on the information they provide. The bounty plan is currently under review, and the FTC will report to Congress on whether or not the plan is viable in September.

Some email marketers oppose the idea of a bounty system.

According to NetCreations President Michael Mayor, a bounty system would create more problems than it solves. He says that marketers' complaint ratios would increase because some consumers, driven by the prospect of a hefty reward, would report any commercial message they receive as spam, hoping to catch a spammer. "Legitimate marketers would wind up in court all day," he says.

EmailLabs' VP-marketing Loren McDonald says he wonders whether the FTC will have the right infrastructure to assess the accuracy of each spam report it receives. He notes that vigilante spam detectives could become a problem for email marketers. However, he does say that it would also be "one more fear factor," and might prompt spammers to take the law more seriously.

"Bounty hunters don't go after the difficult prey first--they go after the easiest prey," says Jeffrey Rohrs, president of Optiem, a Cleveland, Ohio-based interactive agency, in a commentary on the FTC Web site. "The easiest prey will initially be legitimate U.S. businesses who fail to dot an 'i' or cross a 't' in their Can-Spam compliance efforts."

The anti-spam law is now six months old, and research companies are finding that the law has done little to induce spammers to change their ways. Montreal-based email security provider Vircom released a study earlier this week showing that just .01 percent of the spam monitored in a survey it conducted recently was in compliance with the new law.

"For this study, we looked at over half a million spam messages originating from the United States, and found that only 71 actually complied with the criteria of Can-Spam," notes Marc Chouinard, head of Vircom's Spam Buster Team. Earlier in the year, a Pew Internet and American Life Project report found that one-quarter of those surveyed said they received more spam since the Can-Spam law went into effect.

While Can-Spam may not have lowered the tide of unwanted commercial email, NetCreation's Mayor notes that it has served as a differentiation point between legitimate email marketers and spammers. Mayor says that "consumers are beginning to learn what a compliant message should look like," directly as a result of Can-Spam.

EmailLabs' McDonald agrees. He says that not only has Can-Spam raised consumer, marketer, and governmental awareness, but it has also incited rapid industry collaboration on technology solutions, which he and Mayor both say are key to fixing the problem.

The Anti-Spam Technical Alliance (ASTA), which includes major Internet companies Yahoo!, Microsoft Corp., EarthLink, and America Online, last week established Sender ID and domain keys as the two primary email authentication standards. Mayor and McDonald both agreed that third-party reputation-based programs like IronPort's bonded sender program will help legitimate marketers further distance themselves from illegal bulk mail senders.

The FTC was unable to respond to an interview request by press time.