Watch Out for the Feds on The Spam Debate

As I sat to write this, amazingly, a telemarketer called me. "Michael from IMA" told me that they had acquired my name and phone number from "a list" and that he was new, so he did not know the origin of the list. Of course, it's dinner hour. Why should tonight be different than any other night?

I'm actually glad that this cretin called this time because that is the kind of Spam that really upsets me - telemarketing. This email Spam debate is so much different to me, because the level of intrusion is nothing like what I just experienced, and I have no recourse against IMA or Michael. Is he allowed to have my phone number? Well sure, it's listed. And access to that is free for him or anyone like him.

And these telemarketers make money for their clients - a fact which always astounds me. Email spammers do too, I'm told. Though it escapes me how they can. But, we'd better take notice of that fact. While there is much gnashing of teeth by consumers, service providers and yes, all of us who call ourselves Web marketers, about how and why the Federal Government is helpless here and should stay out of it, Fact #1 is that the Fed may very well intercede. There are Bills in both Houses of Congress that would provide a "solution" to parts of the problem.

At least, they could provide a solution in the minds of some. While legislation is not likely in this session, let's not forget that many thought the Feds wouldn't do anything about profiling practices either, and it did not take an Act of Congress to stop it.

So pay attention all you who think that what goes on inside the Beltway is irrelevant to what we do. Bills such as that introduced by Bay Area Congresswoman Zoe Lofgren (D-CA) are actually gaining a great deal of support from media and others, such as University Law Professor Lawrence Lessig who literally has wagered his position at Stanford that her bill will reduce spam. You may have heard of Mr. Lessig, who is a Professor of Law at Stanford Law School and the founder of the school's Center for Internet and Society.

Lofgren's bill, the "Restrict and Eliminate Delivery of Unsolicited Commercial E-mail (REDUCE) Spam" Act will require bulk unsolicited commercial email to include in its subject line the tag [ADV:]. In addition, the bill establishes a bounty for the first person to track down a spammer who violates the labeling or opt-out requirements.

So, credible email marketers would see their campaigns diminished, and the worst kind of spammers would have a "bounty" on their heads, which would be funded by the fines they would pay. Assuming they were caught, of course. And paid the fines, of course.

Am I the only one whose jaw is on the floor every time I read this? Listen up, boys and girls. This is one of the more favorably received Bills on Capitol Hill now. Nutty, huh? Worst of all, it would do nothing to stop the email equivalent of tonight's telemarketer, unless I wanted to become a bounty hunter.

This brings me to fact #2: there are very many people in the US who think that the problem of spam is so severe that it requires a truly draconian solution. Rep. Lofgren and others have cited some pretty serious data on spam (standard issue when introducing a Bill.)

According to the General Accounting Office, it already accounts for nearly 40% of email traffic at an annual cost to U.S. businesses of $10 billion in lost productivity and additional equipment and software. I guess that four or five seconds that each of us takes to filter out those annoying and often pornographic emails every day can really add up, when projected across the country. But $10B? Hmmmm - reminds me of the garbage crisis. Remember the garbage crisis? It came right after the gas crisis. We were supposed to run out of gas, then run out of places to put our garbage. Of course, these were grand schemes executed by first OPEC and then the huge private waste haulers and management companies that had purchased so many municipal solid waste contracts.

But, I digress. The point is that there is no private company here that owns our inbox and will benefit from punitive legislation such as this. But, the amount of pain and frustration that spam is causing people has reached a tipping point.

Any Solution?

Since we started in Washington, let's go back there - to Watergate - which taught us to "follow the money." I think we all understand that email marketing is an important part of the overall Web value mix for consumers. And any regulation should not be designed to punish the companies that play nice while daring the bad guys to do so (i.e. ADV: subject headers) Reputable email marketing is as important to consumers' free content as advertising is. So why don't the more reputable email marketers step up and differentiate the value of their product and lists from the spammers? Is it because the line is so blurry? As Dax Valdez, of Traffic Venue Network, told me, "Almost anyone doing email marketing or advertising on the Web plays a role in this. And we better find a solution that does not force well-intentioned companies underground and make them into spammers."

I agree, so why don't we follow the money? An increasing number of ISPs and businesses are making it easier for their email users to block unwanted email of all kinds. And I think we all understand that our free email addresses such as Hotmail, etc., will always be subject to it. I mean, it's free, right? Those of us in the email marketing business would do well to make it easier for the companies manufacturing the filters and the ISPs and bandwidth providers themselves to fulfill this sooner rather than later. I don't think we want to hear more from Rep. Lofgren or anyone else who thinks that a punitive solution is a solution at all.

Mark Naples is Managing Partner of WIT Strategy, which provides strategic communications, primarily for companies that do business on the Web. Until fall 2002, Mark was VP of Marketing, Investor Relations, and Privacy Officer for 24/7 Real Media.

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