In the last days of the longest and most expensive presidential campaign ever, both sides are using email aggressively.  And why not? Email is cheap, campaigns are desperate, and they are exempt from CAN-SPAM regulations.

That’s right. Political and religious speech are explicitly made exempt within CAN-SPAM’s regulations.  When this law was framed, the exemption allowed it to avoid significant First Amendment tests.

Subscribers Rule
Legal exemption or not, subscribers decide what is spam as far as internet service providers are concerned.  And though their complains don’t have legal weight because of the CAN-SPAM law’s exemption for political speech, they are causing some campaign communications to be blocked en masse by ISPs. (Campaigns are starting to change IP addresses to avoid such filtering.)

Obama Emails Liberally, Catches More Heat
ComputerWorld and The Denver Daily News report that ISPs have started to filter Obama emails as a result of subscriber complains. It appears his campaign has matched names of registered Democrats to email addresses provided by third-party vendors. In industry terms, they’ve performed an email append.

Early in the election, the Obama campaign had sloppy email registration processes.  One could register any email address and person name, which would be automatically subscribed to emails without any confirmation process. So, someone theoretically could take your email address and enter it through the Obama site, along with firstname = “Fat” and lastname = “Slob,” and the campaign would send you messages that began, “Dear Fat Slob …”

McCain Emails More Conservatively, But Still Draws Negative Opinions
ISPs report fewer complaints about the McCain campaign’s email strategy, and note that his team is sending a dramatically lower volume of email.

However, the Denialism blog complains about McCain’s opt-out mechanism, which requires you to affirm your support for McCain before you can leave:

“The options are:
-I am a McCain Supporter but don’t wish to be contacted until closer to the election.
-I am a McCain Supporter but I am receiving too many emails. Please only send me newsletters and urgent alerts.
-I am a McCain Supporter but do not wish to receive email any longer.
-I am no longer a McCain Supporter and want to be taken off the email list.

They should add an option for me that reads:

-I never signed up for your stupid email list. I never supported you, except when you passed McCain-Feingold, and I’d vote for Tina Fey before Sarah Palin. Please take me off your list.”

Political speech or religious speech could imaginably be regulated. Such organizations are already restricted from sending junk faxes. That’s a pretty close analog. And even protected speech can be regulated from becoming a nuisance.

This May Be the Modest Cost of Democracy
The prospect of some future restriction of legitimate speech seems more serious than receiving political spam during campaigns. The occasional nuisance of unchecked political emails is a small cost for unfettered political speech.

Most of the time, politicians are sensitive to public opinion about such practices; just not when they’re in the last days of a campaign.

When is email definitely not spam?
When it’s relevant and people really want it.

Email service provider ExactTarget quotes me in their corporate blog today on the benefits of creating highly personalized email communications. Along with the “use benefits” I quantified for them, I’d also offer that personalizing communications often shifts the editorial voice to being more customer-focused.

In the end, communication isn’t technical; its personal. It inevitably conveys how we regard the person we’re addressing, and the values of the company or person sending the message.  If these personal aspects are removed from a message, then the communication becomes a notification.

Slydial is a free voice message service that directly connects you to someone else’s mobile voicemail. Their phone never rings, and you get to leave a message without actually speaking with them. (Wait for the legal angle; it’s coming.)

Their wonderfully written weasely website spells it right out. There are people you must phone: bosses, significant others, or your aunt for example. And while you might not want to talk to them at the moment, you still want the credit of calling. Now you can Slydial them.

Yep, it’s still in beta and already the product name is a verb.

This free service is supported by subjecting each user to a brief advertisement. I dialed 267-759-3425, listened to a ten-second McDonald’s ad, then entered the number I wanted to call. And yes, it worked. And when I entered the number I was calling from, the service asked if I hadn’t any friends and admonished me for Slydialing myself.

OK, here’s the legal angle, such as it is:
The company and its publicity seem to have omitted the most lucrative paying marketing for such a service that I can think of: telephone marketers. Though you already know all about technology, many people have no idea how to skip through a message in their voicemail. Imagine if telemarketers could simply directly deposit a message to voicemail: many people who’d otherwise hang up might have to listen to a caller’s full pitch.

This could be a new wrinkle in how outbound call centers work. Slymail could be a new variation of spam, slyly directed to your phone’s inbox. This could cause the hysterical members of the media, and wouldbe regulators, to turn their attention from the Internet and puff up this otherwise fun feature as a terrifying next-generation evil permutation of technology.

Give it a try. It’s fun, free, and sneaky. Just remember: don’t Slydial yourself.

2008 has had a string of huge spam convictions. Sanford Wallace and crew gathered $230 million in fines, while “Spam King” Robert Soloway faces extended jail time.

Now Adam Vitale will receive 30 months in prison and $183,000 due in restitution to AOL for a week of spamming back in 2005. Yes, the wheels of justice grind slowly, but they grind exceedingly fine.

Also, an FTC settlement requires Spear Systems and its executives to pay $29,000 in fines for falsely marketing supposed weight-loss supplements. This enforcement action is the first instance of FTC staff using the US Safe Web Act to share information with foreign partners.

CAN-SPAM’s requirements are minimal. There are lots of reasons for marketers to substantially exceed them. But just imagine explaining to one’s new cellmates that one is in prison for spamming. That can’t be popular.

Back in May, the FTC issued a modest set of clarified definitions and additional new CAN-SPAM rules.  Today, July 7th, 2008, those additional rules go in to effect.

If you’re a conscientious email marketer and already on the right side on the full body of federal CAN-SPAM rules, then there’s likely little more you’ll need to do.

However, if you’ve not been attentive to CAN-SPAM requirements, its time to tune in: recent court rulings have held senders of spam liable for large fines and imprisonment.  Besides, reputable marketers should routinely go beyond CAN-SPAM’s modest requirements.

Once you’ve read the federal CAN-SPAM legislation, you’ll see it does little to stop the sending of unsolicited messages. One might in fact call it the “Yes, you CAN spam” act.

Yet even if you can spam, there are good reasons not to. Recently, James B. Zagel of the U.S. District Court in Northern Illinois rulled in e360 v. Comcast that Internet service providers (ISPs) are not liable for mistakenly blocking even permission-based e-mail when it’s part of a good-faith effort to protect subscribers from spam.

This shifts the power from the sender demanding delivery to ISPs and consumers, who may have a far more expansive definition of spam than what would pass the CAN-SPAM act.  If a sender’s message looks like spam, or has generated spam complains from other subscribers, ISPs can block it with impunity as long as their efforts are in good faith.

Though unscrupulous marketers can spam, ISPs can filter their messages. And though the result may not be multi-million dollar fines, the punishment of inexplicably declining open rates as messages are diverted from subscriber inboxes will drive profit out of spammers’ operations.

Read related posts about CAN-SPAM and email marketing.

The Federal Trade Commission has issued new provisions under the CAN-SPAM Act of 2003. These are additional definitions and adjustments to rules, and do not significantly extend these anti-spam regulations for most marketers.

The new provisions address the following main themes:

(1) an e-mail recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page to opt out of receiving future e-mail from a sender;

(2) the definition of “sender” was modified to make it easier to determine which of multiple parties advertising in a single e-mail message is responsible for complying with the Act’s opt-out requirements;

(3) a “sender” of commercial e-mail can include an accurately-registered post office box or private mailbox established under United States Postal Service regulations to satisfy the Act’s requirement that a commercial e-mail display a “valid physical postal address”; and

(4) a definition of the term “person” was added to clarify that CAN-SPAM’s obligations are not limited to natural persons.

The Commission also provided a definition of  “transactional or relationship message” and decided not to alter the length of time a “sender” of commercial e-mail has to honor an opt-out request.

A U.S. District Judge in Los Angeles has ruled that “spam king” Sanford Wallace and his accomplice Walter Rines are liable to pay MySpace $230 million in damages. This is significant both for the verdict’s size, and because the spam happened entirely within MySpace rather than through traditional ISP based email.

MySpace claimed the pair sent in excess of 730,000 messages to MySpace members. Under the 2003 federal anti-spam law known as CAN-SPAM, each violation entitles MySpace to $100 in damages, tripled when conducted “willfully and knowingly.”

The pair were jointly fined $157.4 million, with an additional $63.4 million against Rines under CAN-SPAM — plus $1.5 million more against the pair under California’s anti-phishing law and $4.7 million in attorneys fees.

In the 1990s, Wallace was responsible for sending as many as 30 million spam emails a day. In 2006 a court found him liable for 4 million in damages for distributing spyware.

While nobody will miss the spam, I kind of hope we’ve not seen the last of the ingenious Spamford Wallace.

Colorado has passed new anti-spam legislation, which establishes violations of federal CAN-SPAM law as also being fraud under state law. It then extends the law to those who knowingly falsify routing of point-of-origin information, while establishing protections for plaintiffs, and a statutory penalty of $1,000 per email with a ceiling of $10 million. You can find details and a link to the legislation in the now-updated UsefulArts Guide to State SPAM Laws.

It’s evident that the law was written to prevent the disastrous outcome an Oklahoma plaintiff experienced in The Fourt Circuit’s Ruling in the case of Omega World Travel v. Mummagraphics. In Mummagraphics, the court found that Oklahoma’s anti-spam law, and its protection for plaintiffs, was preempted by the federal statute. The anti-spam activist who brought this case not only failed to prevail, but also lost a $3.8 million defamation suit filed against him by the defendant.

The difference between the Colorado law and Oklahoma’s ill-fated statute is that Colorado defines Spam as fraud and defines such an offense as knowingly committed; that is, it required intent. Oklahoma had attempted to directly regulate email containing deceptive information, which could have occurred by error, and was found to be preempted by the federal law.

Political Bravado for All
In Colorado Governor Bill Ritter’s press release announcing the new law, the Governor framed the problem of junk email: “Spam now constitutes approximately 90 percent of all email server traffic and costs US businesses and consumers billions of dollars annually…”  Then, in the release, the law’s co-sponsor, Rep. Sara Gagliar, is quoted as proclaiming:

“Four months ago, we declared war on spam. Today we say mission accomplished.”  

If this law passes judicial muster, it will provide plaintifs with attractive new options. However, like certain other wars, the war on spam is far from finished. And the mission of stronger enforcement in Colorado has just begun.

Large scale spammer Robert Soloway, age 28, whose criminal trial was scheduled to start in a week, is facing a possible 26-year jail sentence after pleading guilty in Seattle on Friday to charges of fraud and tax evasion.

Soloway is set to be sentenced on June 20, 2008.

The indictment included an array of charges:

1. Counts 1-10 were mail fraud, due to Soloway delivering his spamware through the mail, and the product egregiously failing to be what he said it was, notably including 30 million addresses purported to be opt-in.
2. Counts 11-17 seven were wire fraud, sending spam making false claims about the product, support, guarantee, etc.
3. Count 18 was CAN-SPAM fraud, forged mail headers.
4. Counts 19-25 were identity theft, sending spam forging other people’s return addresses.
5. Counts 26-27 were for failure to file income taxes
6. 28-40 were money laundering, using his ill-gotten income (see counts 1-17) to pay for further lawbreaking, e.g., server hosting and rent for his activitites.

All in all, it was quite a comprehensive indictment, most of which did not depend on CAN-SPAM charges.