• by Bennet Kelley , February 23, 2004

Amidst a complex world governed by shades of gray, there exists an island where black and white reign supreme--the world of email blacklists. The advent of the CAN-SPAM Act and the maturation of the email marketing industry, however, present the question of how or whether blacklists will adapt to this new environment.

Blacklists are either pioneers in the assault against spam or vigilantes, depending on who you ask. There is no question, however, that their passion and dedication to this cause has increased awareness and yielded some initial results in addressing spam; and for this they have earned the respect of friends and foe alike.

Blacklists are now a source of controversy because being placed on a blacklist and labeled as a spammer can damage a company's reputation and lead to its emails being blocked. Blacklists generally define spam as a bulk commercial email in which "the recipient has not verifiably granted deliberate, explicit, and still-revocable permission for it to be sent" which, in industry parlance, is a double opt-in standard.

Even single opt-in or confirmed opt-in emails are deemed spam by blacklists, since only under a double opt-in methodology does the sender truly know that the recipient, and not a third party, has granted consent to send to that address. The fact that a falsely obtained single or confirmed opt-in can be remedied by opting out bears no weight, since the blacklists prefer an absolute presumption that the initial consent obtained through an opt-in or confirmed opt-in was false (no matter how likely this may be). Because of their broad standards, blacklists ensnare spammers and legitimate companies alike, with serious consequences for both. This is why some companies like Experian have gone so far as to litigate their placement on a blacklist.

Now that there is a national regulatory regime for email marketing, will blacklists adapt to also distinguish the truly bad actors who ignore the law from other marketers? Unfortunately, for the time being, the answer is "no."

I contacted some of the leading blacklists, and those that responded expressed both their disdain for CAN-SPAM and their intention not to alter their practices in any way (although one group did indicate it gave consideration to the issue). As one group explained, the spam "problem revolves around consent, not content, or format . . . or compliance with the law. . . . At the end of the day, we don't think the millions of beleaguered victims of email abuse care one whit whether their abusers have complied with the current law or not." Certainly their focus on consumers' expectations is laudable, but vis-à-vis marketers their view is that both an opt-in mailer who complies with CAN-SPAM and a spammer who ignores all obligations under the law share equal status--and, in the words of one blacklist--should "get a real job."

In a world where there are varying degrees of murder and other offenses, how justifiable or useful is such an absolutist approach? Knowing which marketers comply with CAN-SPAM would benefit (i) consumers who may be unsure whether to use an opt-out mechanism (or even opt-in in the first place); (ii) advertisers who want to ensure that they are working with legitimate companies now that they share liability under CAN-SPAM; (iii) ISPs and businesses trying to determine how to configure their email filters; and (iv) law enforcement officials who will want to focus their initial enforcement efforts on the most egregious offenders. Most importantly, if the blacklists were to identify the true bad actors, it would increase their risk of prosecution and eventually starve these true spammers, since advertisers would have the information to enable them to migrate toward legitimate marketers--two results that blacklists certainly should welcome.

If blacklist were to identify these bad actors, it would not in any way compromise their advocacy of a double opt-in standard (either in legislation or as an industry standard). It would, however, require that the blacklists at least recognize the reality of CAN-SPAM, which is anathema to them. In summary, the blacklists are faced with a choice between absolutism and adaptation to the new environment, with an opportunity to achieve real results in the battle against spam. Unfortunately, their initial response has been to maintain their world of black and white. It is my hope, however, that they will eventually be persuaded to choose adaptation, and will harness their talents to achieve real results in the world of gray.

Bennet Kelley is Vice President of Legal & Strategic Affairs for Hi-Speed Media, Inc., a ValueClick company.