In a blog post on 5 March 2010, (original French version), Gandi.net asserts that it has been blocked by SORBS since last December.

The accusations seem to be almost par for the course when accusations are leveled against SORBS. Namely, Gandi is saying that SORBS

1. Feels that it is “above the law”
2. Demands that action be taken against clients based solely upon the word of the SORBS administrators.
3. Is listing without prior notification (i.e.: No attempt is made to work with them prior to listing.)
4. Is demanding paying for delisting.

The SORBS website has no updates on its news section since 10 November 2009, no statement on its front page, and no comment made on Gandi’s site. So there is no telling what its side of the story is.

UPDATE: Michelle Sullivan posted SORBS’ side of the story on 2 March 2010, on the news.admin.net-abuse.email USENET group.

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One of the first things I learned when I became a legal assistant is that there are rarely any pat answers. A blanket assertion is almost always wrong. (Did you see the attorney-like weasel wording there?)

There has been an interesting discussion on Twitter today regarding a February Techcrunch post (and wow is a half month kind of stale for Twitter discussions). Thanks to some imprecise language by Michael Arrington, the question has arisen as to whether a press release is subject to CAN-SPAM.

First, let me begin by saying that I agree with Laura Atkins, who says that “spam” is an ill-defined term. In his post, Mr. Arrington tosses around the term “spammer” rather blithely, without actually saying how he defines it. So, the whole argument is really about an ill-defined word used in conjunction with what is ultimately a customer service complaint.

But, the conversation on Twitter was about the applicability of the CAN-SPAM Act to press releases. Thankfully, everyone in the conversation agreed on one thing: Whether CAN-SPAM applies or not, people who distribute press releases should afford recipients the opportunity to opt-out.

Now, past that, things get murky, and that is thanks to the very law that we are talking about. With the exception of the mandate not to use forged or misleading headers, CAN-SPAM only applies to commercial email, which is defined in the statute:

The term “commercial electronic mail message” means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).

15 USC 7702(2)(A).

That makes perfect sense, right? In fact, the FTC’s thoughts on the subject pretty much say “‘Primary purpose’ means what we think a normal person thinks it does.” So, what’s the problem?

First of all, understand that using a service to handle the distribution of your press release doesn’t let you off of the hook for CAN-SPAM compliance. If the purpose of your press release is to notify the world’s reporters of your outstanding product or service (because everyone loves “free advertising” on the nightly news, right?), or something related to your outstanding product or service, then it’s probably a commercial electronic mail message. Otherwise the spammers of the world (like Alan Ralsky who is going to prison for his part in a pump-and-dump stock scheme) would just need to relabel their email “press release” and it would be completely legal. Calling a hog a duck won’t give it the ability to fly.

But most people think of press releases as being purely announcements or information dumps. Something that is not directly related to your product or service wouldn’t fall inside the “primary purpose” of advertising or promoting your product or service.

So, in short, if your press release is entirely an announcement (for instance, giving information regarding your CEO’s press availability or the promotion of Susie Superduper to Executive Vice President), then it probably falls outside of the definition of CAN-SPAM. If you are announcing the dates, times, and extraordinarily low prices of your next big “SUPER MONDO BLOWOUT GARGANTUAN SALES EXTRAVAGANZA” in an emailed press release, then you need to make certain that you are following CAN-SPAM’s dictates.

Likewise, if you are distributing press releases, you should probably treat your business like it were an Email Service Provider. That means you should handling opt-outs and managing bounces.

Does it apply in this case? We don’t know. Mr. Arrington never actually released the contents of the “press release” that set him off. But, he did release a screen shot of a list of several of their mailings, and a lot of them look like they are commercial in nature instead of being a more “announcement-type” press release. I think they probably should have complied with CAN-SPAM. But, of course, that’s the FTC’s call, not mine.

So, now what do you think? Are press releases never advertisements? Are they always advertisements? Did I draw the line in the wrong place?

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• you think in terms of “prospects” not “clients” or “customers”
• you think only of the revenue that the people on your list represent
• you think that “best practices” are rules that apply to other people, but not you
• you think that businesses who use your product or service are in business for the sake of doing business instead of helping clients solve problems
• you think that adding random text to your email will solve all of your delivery problems
• you think that “deliverability” is about doing the minimum to get by “the ISPs”.

Feel free to add your own in the comments.

semantics definition
se·man·tics (-tiks)
noun

1. the branch of linguistics concerned with the nature, the structure, and the development and changes of the meanings of speech forms, or with contextual meaning
2. 1. semiotics
   2. the branch of semiotics dealing with relationships of signs and symbols to the things to which they refer, or with referential meaning
3. the relationships between signs and symbols and the concepts, feelings, etc. associated with them in the minds of their interpreters; notional meaning
4. loosely deliberate distortion or twisting of meaning, as in some types of advertising, propaganda, etc.

That’s immediately what came to mind when I was pointed to an article in BtoB Magazine by Kelly Lorenz and read the quote in this post’s title.

The entire point of the article is to say that the national economy has forced businesses into rethinking the use of best practices:

E-mail best practices dictate that you get the best results when you send messages to those who have opted in. But the recession, said Gary Halliwell, CEO of NetProspex, a “crowdsourcing” marketing database company, has changed e-mail marketing.

The post created a nice little discussion both on the website and on Twitter, which eventually included NetProspex and its COO, Mark Feldman. The long and short of the discussions ended up centering around NetProspex defending its business model. Best practices which conflict with NetProspex’s business model are “etiquette” and should be changed or dropped. Best practices which don’t conflict with the NetProspex business model are still best practices that should be followed.

This idea is prevalent across the board there. Consider, for instance, this post on their website: “Targeted Opt Out is the New Opt In.” Subtitles in this post include “Relevance trumps permission,” “Buying targeted lists is OK,” and “Can you afford not to?” I don’t find anything shocking in this, for we are talking about their livelihood, after all.

The gist of their argument is that opt-out email is legal under CAN-SPAM, so it should be okay with your recipients, too. For instance, in the BtoB Magazine article, their CEO says:

“The requirements of CAN-SPAM are really clear,” he said. “The sender of an e-mail has to provide an opt-out link, but there’s nothing prohibiting a marketer from sending an e-mail to someone who hasn’t opted in. The recession has forced us to drop this etiquette. We’re seeing a lot of companies, including Fortune 1,000 companies, changing their strategies from opt-in to opt-out with good results. As long as you’re sending relevant materials and creating educational experiences, people will be open to receiving your messages.”

On their website, you find this bit:

Contrary to some thinking, buying lists is OK. Remember the CAN SPAM act never mentions the words “opt-in” at all. That’s because CAN SPAM deals specifically with how to conduct opt-out campaigns that are in compliance with the law. There has often been confusion in this area, confusing “opt-in” with CAN SPAM.

I will certainly grant them that there has been some confusion here, but that confusion isn’t on the part of the people advocating best practices. We advocate things like “get permission” because it’s the right thing to do for our customers and clients, not because it’s a legal requirement. Best practices are best practices for a reason, and that reason in the commercial email space is rarely because Miss Manners has suggested that it’s the proper thing to do. It is far more often found in the desires of the recipients and the ISPs they pay to process mail for them.

And, as Al Iverson points out, “If ‘don’t break the law’ is your best advice, maybe you’re not really much of an expert.’”

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There seems to have been a bit of confusion over a previous post I’ve made over the use of WHOIS privacy services, like Domains By Proxy.

It has gotten back to me that some people are pointing to that post as saying that ANY use of a WHOIS privacy service “is illegal.” Nothing could be further from the truth.

There are, in fact, a whole host of reasons to use a WHOIS privacy service. Some individuals who host their own websites may wish to use such a service because, despite having terms of service to the contrary, some marketers choose to mine WHOIS data to fill their lists. Some people have created sites critical of some group, organization, county, or idea and don’t want to be the recipient of hate mail or a visit by the local jackbooted constabulary.

But none of the reasons to use a WHOIS privacy service include email marketing. You have to take ownership of your program within your company, you need to take ownership of your program facing the rest of the world too.

The 9th Circuit’s decision did not make the use of WHOIS privacy services illegal in all cases. It was a case that revolved around the use of email in a CAN-SPAM Act context. The statement that it made (“Based on the plain meaning of the relevant terms discussed above, private registration for the purpose of concealing the actual registrant’s identity would constitute ‘material falsification.’”) was made within that context. Thus it was a statement about the intersection of WHOIS privacy services and “material falsification” in a CAN-SPAM Act context.

The statement seems clear and direct, so don’t use a WHOIS privacy service on domains that you are using in your email campaigns. But, don’t make the statement more broad than was intended.

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So, today’s post gets a caveat: I am not an attorney licensed to practice in any jurisdiction and so you should not be looking to this site to provide you with legal advice. I can only provide my own understanding as an expert in email related issues. For actual legal advice, you need to pay an attorney for his time so that the vagaries of the law as they may apply in your specific circumstances can be accounted for.

Legally, a feedback loop (FBL) is an agreement between an ISP (or its representative) and some third party (another ISP, an ESP, or a company that sends lots of mail) which provides for some or all complaints received by the ISP (or processed by its representative) to be directed back to the third party.

The first question here has to do with the CAN-SPAM Act of 2003. As everyone knows, there is a requirement in CAN-SPAM to remove people who have chosen to opt-out of a mailstream from a list within ten (10) business days from their request. Perhaps oddly, the ten business day requirement is only linked in the statute to the removal mechanism provided by the sender within the email itself. In other words, CAN-SPAM probably has no application since a feedback loop is not going to be the removal mechanism specified by the sender in the email.

The lone caveat to this deals with FTC v. Yesmail d/b/a @Once Corporation. In Yesmail, the FTC prosecuted Yesmail for the failure of @Once to process email sent by recipients requesting to opt-out of the lists maintained by @Once’s clients. Without knowing more about how the emails at issue specified the means of opting out and how those means were actually accomplished, it is impossible to say whether it is the FTC’s expectation that if the recipient expects that their request or complaint will result in their removal from a list then they must be removed from that list, even if the request comes in via some other means than the means specified by the sender in the body of the email.

So, if the question is intended to ask about the possibility or probability of getting sued by the FTC for failure to process FBL complaints as unsubscribe requests, then the answer (which is really best answered by the FTC itself) is “probably not.”

Current best practices dictate that complaints received over a feedback loop be processed as remove requests, and this is explicitly encouraged by many providers. For instance, AOL states on its best practices page:

When users click “report spam”, you can get a copy of the spam complaint through our Feedback Loop (FBL) system. Ensure that you have an active FBL on each of your IPs and that you are processing the complaints quickly. Many senders will treat a spam complaint as an unsubscribe and remove a name from their mailing list if the user clicks “report spam.”
(emphasis added)

Likewise, the Frequently Asked Questions pages for FBLs run by ReturnPath all state (using Comcast as an example here):

How do I process complaints from the feedback loop?
We recommend that you remove unhappy subscribers from your mailing lists to prevent future complaints. However, the core requirement is for senders to address any issues within their mail program or network that are causing complaints.
(emphasis added)

In the actual terms of service for these programs, however, there are no explicit terms set forth which demand that FBL complaints be processed as unsubscribe requests. The FAQ pages only contain suggestions, and even if they set an expectation on the part of the ISP providing the FBL, they rarely constitute part of the binding agreement to setup the FBL.

In fact, the lone exception that I can find to this seems to be MSN/Hotmail’s Junk Mail Reporting Partner (JMRP) program. There, they explicitly state that the purpose of the JMRP program is to “help large senders remove unwanted recipients from their e-mail lists.” Here, there may be ramifications for the failure to process, but those ramifications seem to be limited to the loss of membership in the JMRP program and loss of deliverability.

All of that said, there remains some possibility that some unfortunate ESP’s clients may choose to sue for negligence. Since best current practice dictates, and the ISPs providing the feedback loops all at least strongly suggest, that FBL complaints be treated by the ESP as unsubscribe requests and removed from the list, then the client may try to put forward a case that the ESP owed a duty of ordinary care (or perhaps, a fiduciary duty) to the client and should, therefore, remove the FBL complaints and should, therefore, be held liable for the loss of delivery due to poor stats caused by the negligent failure to remove the complainants from the client’s list.

Such a case would likely not prove successful, as there are multiple reasons to use feedback lists, other than just to remove people who are complaining about mail. But, as I have asked before “Would you like to fund that lawsuit?”