• by Bennet Kelley , December 5, 2003

As we conclude a landmark year for online marketers, we should consider some of the lessons learned during 2003.

People Are Passionate About Spam. To get a sense of the level of passion about spam one need only have attended the FTC's Spam Forum this spring where the atmosphere was closer to a wrestling event than the normally staid government forums. Anti-spam advocates turned out en masse and demonstrated to the regulators, industry and media attendees their vehement opposition to spam. These anti-spam advocates are savvy and well organized via the Internet through websites and chat boards where the call for "e-jihad" is heard daily (especially after passage of CAN-SPAM). This will not dissipate any time soon.

"Big" Government Has its Benefits. One of the highlights of the FTC Spam Forum was when FTC Commissioner Orson Swindle prevented a potential melee between blacklist representatives and an opposing lawyer. Swindle, a six- foot-plus former Marine, towered over the group and warned them that "if you want to see assault, I can show you." With peace restored, it was clear that "big" government was alive and well in Washington.

Spam is... Despite extensive discussion about spam in legislatures and the media, we learned that there is no uniform definition of spam. While in legal terms spam is often defined as "unsolicited commercial email," the CAN- SPAM Act fails to define spam. To purists spam is any commercial email that is not double opt-in, while the DMA defines spam as merely fraudulent or pornographic email and the ISPs define spam as whatever their users say it is. Very few media reports make an attempt at defining spam and often suggest to consumers that spam and commercial email are one in the same. No consensus on this issue will occur until parties at least agree on a definition of the problem.

Easy Target. Given the passions about spam, it is a given that spam regulation makes good politics. At the same time, passage of the California spam law revealed that online marketers are easy prey since it is a young industry that is poorly organized and inexperienced at legislative battles. The industry not only had no data to convince legislators of the jobs created or economic benefits that the growing industry provides, but failed to mobilize in response to the California threat. As a result, the industry was barely noticed by California lawmakers -- with one lawmaker telling me that he believed there was no industry opposition to the California bill. While the industry was saved from disaster by the CAN-SPAM Act, it should learn its lesson from the experience and be better prepared for the next battle.

Never Underestimate a Shpilkes. Senator Schumer once explained his political zeal to his colleagues by noting that his grandmother called him "Shpilkes" - a Yiddish term for "ants in the pants." Grandma Schumer was dead on, as her little Shpilkes has aggressively pursued his agenda on a wide range of issues in the Congress, particularly consumer issues. As a Congressman, Schumer prevailed over the powerful banking lobby to require credit card companies to include the "Schumer box" describing key terms in solicitations and statements. Senator Biden has praised the first-term Senator as one of the more effective Democratic Senators. Thus, it was no surprise that he prevailed in insisting that the CAN-SPAM Act contain a "Do Not Spam" registry provision despite strong DMA opposition. Senator Schumer is certain to be a force to contend with in future debates over regulation of commercial email.

Bennet Kelley is Vice President of Legal & Strategic Affairs for Hi-Speed Media, Inc., an interactive marketing company in Los Angeles.