• by Bill McCloskey , February 2, 2005

Editors' Note: MediaPost is re-sending the E-mail Insider due to a glitch whereby a previous column was sent by mistake. We regret the error.

On the front page of Tuesday's New York Times there is a long article that basically makes the case that the Can-Spam laws have actually increased the volume of unwanted e-mail marketing messages (or UEMM - a term which I'm trying to coin starting with today's E-mail Insider: a much more descriptive term than spam).

With the misleading headline, "Law Barring Junk E-Mail Allows a Flood Instead," the article uses graphs from MessageLabs and quotes from folks at Spamhaus saying that the Can-Spam law has "legalized spam" in order to infer a cause and effect relationship between the law's passage and a rise in the volume of UEMM.

Of course, the whole article is rubbish.

Well, almost the whole article. The real reason that companies like MessageLabs are recording a surge in UEMM volume is buried in the third column of the second page of the article: "The more effective the filtering technology, the more spam they have to send to get the same dollar rate of return, "says Anne Mitchell, the lawyer who helped draft the Can-Spam legislation and is chief executive of the Institute for Spam and Internet Public Policy.

In other words, because systems are working that are keeping UEMM out of peoples in-boxes, spammers need to send a higher volume in order to make up the difference. And, of course as far as the quote that the Can-Spam legislation "legalized" spam, it is probably good to remember that spam was never illegal until the legislation came out.

The point that is important (and the point completely ignored by the Times article) is that it is not the volume of unwanted e-mail floating out in the world that is the measure of the problem. It is the volume of unwanted e-mail that makes it into people's in-boxes. And no one has an accurate measure of that.

Anecdotally, I can tell you that as a result of products like Cloudmark and systems like Gmail, my volume of UEMM is almost zero. And I expect that if you did a poll of the world, most people would report that volume numbers have dropped precipitously since the legislation was enacted.

The problem as I see it is not the volume of UEMM that is dangerous. It is the overzealous services that companies are instituting that pose the real threat to Internet communications. We have advocated our rights to the loonies and vigilantes out there who are destroying pathways for people to communicate through overzealous and unregulated overreactions to the problem.

We have discussed this a number of times through this column, including vigilante blacklisters and companies like Lycos issuing denial of service attacks. Recently I tried to send an e-mail to a freelancer who was working for me who has an AOL account. I was unable to send the e-mail to her because my e-mail contained some links that AOL customers had complained about.

In other words, AOL's servers read my e-mail and because it contained a link to a domain (and we are talking about a link to a Fortune 500 company's Web site, not some pornography site) that some AOL customer had complained about, all e-mails with that domain were blocked by AOL. The freelancer never received the e-mail and a simple e-mail communication was blocked because of very questionable e-mail practices by AOL.

We find the same issue with Gmail. For instance, I have all my newsletters forwarded to my Gmail account because I like to use their searching algorithms to search through my business-related newsletters. The problem is that Gmail provides no ability to whitelist by domain.

hey only allow someone to whitelist the entire "From" address. Since most newsletters generate a unique e-mail address in the from line for each newsletter sent, I spend half my time going into Gmail's spam filter and unblocking my newsletters. No matter how many times I unblock my ClickZ newsletters, for instance, the next one always ends up in the Gmail's spam folder.

The artist John Cage said it best: "How to Change the World - You Will Only Make Things Worse."