Paul Hearth wrote on July 23, 2004 1:35 PM
"How do laws help the international community? How do we,
the community, ensure that any laws that do get passed are
actually workable and not counterproductive, unlike for
instance the YOU-CAN-SPAM act, which trumped some much
better state laws?"
A couple of comments:
* There is difference between what have been called
"sentiment laws" and "action laws."
* Let me elaborate. A law which says in essence "Emailers
may not send unsolicited email in bulk" is a sentiment law.
The EU Privacy Directive which makes it illegal to send
unsolicited direct marketing email to consumers is an
example of a sentiment law.
(The Directive does allow for a private right of action.
However, the remedial powers are extremely week, standards
within the EU are fragmented and not all the EU members
have transposed the directive into state law.)
On the other hand, a law which says "emailers may not send,
advertisers may not advertise in and suppliers may not
support fraudulent or deceptive email," provides clear and
definitive bright lines of fraudulent or deceptive
activity, with strong enforcement powers and the required
tools to enforce the law is an action law.
On this point, read the discussion paper, Countering Spam:
How To Craft An Effective Anti-Spam Law
http://www.itu.int/osg/spu/spam/contributions/Background%20Paper_
How%20to%20craft%20and%20effective%20anti-spam%20law.pdf
(The paper was presented at the recent anti-spam conference
conducted by the ITU in July.)
Some argue the problem lies with the views of the American
Association of Advertising Agencies, the Association of
National Advertisers, and the Direct Marketing Association
(the three largest marketing trade associations in the US
and by default the globe).
Why? These three organizations and their members continue
to support the sending of unsolicited bulk commercial
email.
See for example the "9 Guidelines That Establish Standards
for Legitimate E-mail Marketing Practices" published by the
AAAA, ANA and DMA in October, 2003.
http://www.the-dma.org/cgi/disppressrelease?article=511
In turn, this stance justifies an online marketing ethos
which supports spamming.
True, an attempt is made to avoid this charge. How? By
defining spam as any fraudulent commercial email message.
But, this stance misses the point. In the online world,
responsible direct marketing can only occur with prior
consent.
Until these organizations and their members embrace this
standard, spam will continue to be a major problem.
Others argue fraudulent commercial email forms the vast
bulk of spam. This is the problem we need to control. These
organizations support this effort. Let's write action laws
focused on fraudulent activities and take action designed
to tackle the problem of fraudulent commercial email.
Once this problem is under control, we can then tackle the
marketing ethos which supports the sending of unsolicited
bulk email.
I would suggest this is the premise behind:
* The recent policy paper of the Anti Spam Technology
Alliance and the actions being taken by the big mail box
providers; and,
* The recent announcement of Microsoft to start checking
for sender authentication by October 1, 2004.
This is all fine and good.
However, I would argue as long as the major trade marketing
organizations in the US support a marketing ethos that
includes sending of UBE, the likely result of the various
efforts now being undertaken is the type of UBE in the
system will change and become more sophisticated, but UBE
volumes will continue to increase.
Why do I say this? Let's presume for the sake of discussion
fraudulent activity through email is brought under control.
What is the justification for emailers who use UBE to
reduce volume levels? None.
And what is the justification for service providers to stop
supporting UBE emailers? None.
And what is the justification for advertisers that include
UBE as a marketing channel to stop? None.
In fact, I would argue as it becomes apparent the focus is
to block fraudulent activities, marketers involved in this
activity will simply take their accumulated knowledge and
skills and shift their efforts, while still using UBE.
The net result? UBE will continue to be a major problem.
Setting aside fraudulent activity, to tackle UBE, I suggest
one area of focus is the implementation and usage of
credible accreditation and reputation services by Internet
service providers, with these services being subject to
regulatory oversight to prevent abuse.
John Glube
Toronto, Canada
The FTC Calls For Sender Authentication
http://www.learnsteps4profit.com/dne.html
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