The 7th Circuit has issued its opinion in e360 Insight’s case against the Spamhaus Project. The award against Spamhaus was reduced to $3. That would be a dollar apiece for defamation, tortious interference with prospective economic advantage, and actual damages.

e360 appealed the verdict claiming that the discovery sanctions that Judge Kocoras imposed were unreasonable. While all of the things that laid the groundwork were going on, some people complained to me that this was all taking too long and that the judge was giving e360 too many chances. But, in its review of the discovery sanctions, the 7th Circuit said “…we weigh not only the straw that finally broke the camel’s back, but all the straws that the recalcitrant party piled on over the course of the lawsuit” (Slip Op. at 9) Every single one of those incidents were straws, and the 7th Circuit looked through them all before concluding “Thus, it is of little consequence whether, as e360 argues is the case here, the conduct that finally drew the district court’s ire can be explained away as a simple negligent mistake. A district court may conclude that one more supposed miscommunication is just another example of a party’s demonstrated inability to take his discovery obligations seriously” (Slip Op at 9, 10).

They continue:

Even more troubling are e360’s supplemental interrogatory responses. When e360 submitted those responses, it implied that its amendments were meant only to rectify defects in its previous responses. In actuality, however, e360 had drastically amended its previous responses. It added sixteen new witnesses, and it increased its damages estimate by a full order of magnitude.

Even setting aside e360’s previous discovery delays, these changes provided powerful evidence that e360 was not engaging in the discovery process in good faith. There is no way that e360 could have believed in good faith that its last-minute disclosure of so many new witnesses and a radically inflated damages estimate was even remotely appropriate, especially as part of its belated effort to comply with a court order compelling discovery. We cannot believe that e360 first learned of all this information in the two weeks between its initial, late, and inadequate responses to Spamhaus’s interrogatories on August 29, 2008, and its amended responses on September 12, 2008. All indications are that this late disclosure was meant to prolong discovery and inflict additional costs on Spamhaus by forcing it to request additional time to depose those witnesses and learn the details of the inflated new damage estimate. e360 only reinforces this suspicion by arguing to us that its failure to comply with the district court’s July order “could have been remedied by allowing Spamhaus to conduct any [additional] discovery it felt necessary.”

With this track record, no reasonable person could conclude that the district court’s sanctions were too severe.
(Slip Op. at 10, 11)

So, all of that stuff that everyone slogged through wasn’t for naught. This, my friends, was the pay off. And, for any attorneys reading this, perhaps a practice note should be that you don’t substantially change your interrogatory responses and claim that you’re just correcting a couple of defects. You lose credibility when you do that.

Also of significance, e360 appealed some rulings on the damages prove-up. First was the ruling that David Linhardt is not an expert and was unreliable as a witness. Much of this was based upon the constant flux in Linhardt’s damage estimates at trial and how that meant that (a) he wasn’t much of an expert and (b) wasn’t even reliable as a lay witness. e360 didn’t appear to say much about reliability issue, but instead turned on the ruling that he was not an expert. They agreed that he was a lay witness and argued that the district court should have allowed his testimony in because he was held to the wrong standard (since he’s not an expert, you see). The panel deftly sweeps that away by stating “e360’s argument misses the point. The district court gave Linhardt’s testimony no weight because he was not credible” (Slip Op. at 18).

Finally, the panel looks at the actual award. There, they decide that Judge Kocoras erred by granting damages based upon gross revenue rather than profit.

The real practice note for attorneys comes from the Conclusion:

By failing to comply with its basic discovery obligations, a party can snatch defeat from the jaws of certain victory. After our earlier remand, all e360 needed to do was provide a reasonable estimate of the harm it suffered from Spamhaus’s conduct. Rather than do so, however, e360 engaged in a pattern of delay that ultimately cost it the testimony of all but one witness with any personal knowledge of its damages. That lone witness lost all credibility when he painted a wildly unrealistic picture of e360’s losses. Having squandered its opportunity to present its case, e360 must content itself with nominal damages on each of its claims, and nothing more. We VACATE the judgment of the district court and REMAND this matter with instructions to enter judgment for the plaintiffs in the amount of three dollars.
Slip Op. at 22, 23

As Laura Atkins states, “that case may finally be over.”

You can listen to the mp3 here.

My impressions are that e360 is likely toast. In fact, I think that there is some chance, after hearing Judge Pozner refer to the damages case put on by e360 and it’s attorneys as “grotesque”, and asking if there existed any documentary evidence to back up the damages claimed, and other bits indicating that this was one of the worst damages cases ever run in Judge Pozner’s time on the bench, that there may be a successful lawsuit against e360′s attorneys for legal malpractice.

Of course, no one knows how a panel will rule until they issue their ruling. But, I would not be shocked to find the damages dismissed in their entirety, or reduced to some nominal amount, such as $1.

If you listen to the mp3, the “interesting” part begins at approximately minute 16.

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Lots of time and space has been dedicated to an examination of Canada’s new anti-spam law.  And we have been watching it too.  For a general overview of the law, I would suggest reading Al Iverson’s ExactTarget blog post about it. Today, though, let us consider a burning question in the eyes of marketers: “Does this law apply to me, even if I make a mistake?”

The terms of the law are pretty simple.  It covers email sent to, from, through, or accessed in Canada. The rub comes when the impact of those terms are examined.

People get used to thinking in terms of criminal law, where mens rea (or a “guilty mind”) is required as a part of a criminal act.  Then we want to pull that idea over with us to civil law and look at the intent of the actor in determining if there is actually a problem.

But, civil law is not criminal law.  There is no requirement that an action be accompanied by a guilty mind.   All that is required is that the civil statute be broken.

While American law is not Canadian law, I think that it is instructive to consider an example from our jurisprudence on this question: the trebling of damages under the Telephone Consumer Protection Act (TCPA).

The TCPA prohibits certain things including making pre-recorded telephone calls, and it includes a general private right of action. That means that if you make a pre-recorded telephone call, the recipient of that call can sue you in a court of appropriate jurisdiction for damages as set by the law.  The law also includes a section that allows a court, at its discretion, to treble statutory damages from $500 per violation to $1500 per violation, if the Judge determines that the violation was done “willfully or knowingly.”

Now “willfully or knowingly” sounds like it is a requirement to determine the state of mind of the caller, right? But, that is not true.  In a 2010 case (Sengenberger v. Credit Control Services, Inc., No. 09-cv-2796, 2010 WL 1791270 (N.D. Ill. May 5, 2010)), a judge trebled damages based upon a finding that such messages were sent voluntarily. Specifically, the judge pulled together a history to support his determination:

While the TCPA does not define willful, the Communications Act of 1943, of which the TCPA is a part, defines willful as “the conscious or deliberate commission or omission of such act, irrespective of any intent to violate any provision[], rule or regulation.” In Dubsky v. Advanced Cellular Communications, Inc., No. 2008 cv 00652, 2004 WL 503757, at * 2 (Ohio Com. Pl. Feb. 24, 2004), the court found that in the context of the TCPA, the term acting “willfully” means that “the defendant acted voluntarily, and under its own free will, regardless of whether the defendant knew that it was acting in violation of the statute.”

Notice the line “irrespective of any intent to violate” because that is important in this context.  What really mattered was that the calls were not made under duress.

So, how does all of this apply to Canada’s new anti-spam law? The only requirement found in the law is the one that we have already mentioned: A message must be sent to, from, through, or accessed from within Canada.  There is nothing in the law about registries, guesses, or intents.

If your mail file contains Canadian addresses, then the law applies.  So, it all comes down to a single question: How well do you know your recipients?

If you are following your email service provider’s rules then you probably know your recipients pretty well, and you really should not need to care much about the law anyway.  After all, our policy states that our clients “certify that they will not use rented or purchased lists, email append lists, or any other list that contains email addresses captured in any other method than opt-in.”  Marketers who are paying attention to permission will have a better idea of where their recipients are located, and even if they do not, they are complying with the biggest responsibility that they have under the statute: get permission before sending commercial messages.

On the other hand, marketers who are purchasing or renting lists have to take someone else’s word for it that permission exists and/or that there are no Canadian addresses on that list.  And worse, those who are purchasing append data have even less to work with.  Often, appended data is really someone’s best guess as to a match. Sometimes, perhaps even often, that data is spot on, but all that it takes is one mistake in a file to send to a person in Canada instead of Kansas and thus subject the marketer to liability. Why? Because all that matters is that they meant to send the mail, not that they did not mean to send the mail to Canada.

Note: I am not an attorney licensed to practice in any jurisdiction. 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.

Big news today appears to be a couple of lawsuits filed by Holomaxx Technologies.  One was filed against Yahoo and Cisco and the other against Microsoft and Return Path.  In both, Holomaxx makes some statements that indicate that they don’t have a firm grasp of the CAN-SPAM Act.

Here’s a snippet:

HOLOMAXX is therefore entitled to:

A declaration that:

1. HOLOMAXX’s current email practices, as set forth herein, are in accord with the Can-Spam Act;
2. Email sent by HOLOMAXX in accord with such practices are not spam; and
3. HOLOMAXX has the right to send such legitimate, non-spam emails directly to the intended recipient’s primary inbox, without interception, deprioritization, blocking, delay, or other interference.

While it may be true that Holomaxx’s practices comply with the requirements of CAN-SPAM, there are two major obstacles to winning anything based upon CAN-SPAM compliance.  As Al Iverson points out: “Doesn’t CDA Section 230 already nullify Holomaxx’s claims here?”

My understanding is that the CDA does generally apply to filtering and blocking decisions.  If nothing else, e360 Insight’s loss to Comcast points this out.  Also, CAN-SPAM itself contains this (ominous for Holomaxx) bit:

Nothing in this chapter shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.

15 USC 7707(c)

So, I guess we can congratulate Holomaxx on following the dictates of the law.  But, we need to also remember that compliance with the law does not guarantee that your email will be delivered at all, much less delivered to the inbox.

Professor Goldman posted the case filed against Yahoo:

And I grabbed the complaint filed against Microsoft:

Al Iverson, my good friend, asked me to have a look at a question asked on Twitter by @drdigipol about DNSBLs and advocacy groups.  Here’s the question (in case you don’t feel like following the link):

Question re SPAM Blacklist Services: What r policies re advocacy orgs that send email not covered by CAN SPAM (i.e. 1st Amend protected)?

There are some important understandings missing from this question.  First of all, there is this terrible misunderstanding of the status of advocacy groups.  Advocacy groups do not enjoy greater First Amendment protections than the average citizen.  Second, the CAN-SPAM Act of 2003 does not impact DNSBL policy at all.

If you want to rephrase the question into something that makes a bit more sense, it needs to look like this:

Question re SPAM Blacklist Services: What r policies re email not covered by CAN SPAM?

When we phrase it that way, we can see the obvious answer much more quickly: The policies are whatever the policies are.  You can visit their websites and see what those policies might be.

But, that’s not what our petitioner really wanted to know.  We learn that from the rest of the thread here.

1. @drdigipol: Question re SPAM Blacklist Services: What r policies re advocacy orgs that send email not covered by CAN SPAM (i.e. 1st Amend protected)?

2. @drdigipol: @MarkatEMR What r ur thoughts about advocacy groups protected by 1st Amend/not covered by CAN SPAM having email blacklisted?

3. @MarkatEMR @drdigipol Not a lawyer, but guess 1st amen’rights give no immunity to blacklisting by *private* orgs/networks (e.g. ISPs)? Try @aliverson

4. @drdigipol: @MarkatEMR TY Mark. @aliverson Ur thought re advocacy groups getting blacklisted for SPAM even though not covered by CAN SPAM law?

5. @aliverson: @drdigipol non profit spam is still spam. No legal basis to say “you can’t blacklist me.”

6. @drdigipol: @aliverson What about blacklists that use double opt-in criteria?

7. @aliverson: @drdigipol What about them? Are they run by the gov’t? If not, then how does 1st amendment apply? They’re not widely used, either.

8. @drdigipol: @aliverson Since political/policy speech protected by 1st Amend, seems blacklisting advocacy orgs that don’t use dbl opt-in is problem.

9. @drdigipol: @aliverson I realize prvt companies can filter what they want, but not everyone using blacklists understand what is being blocked.

10. @drdigipol: @aliverson Many advocacy grps use single opt-in via action alerts & follow SPAM law anyway. But I heard NJABL.org blacklisted anyway.

11. @aliverson: @drdigipol you need a new lawyer.

12. @aliverson: @drdigipol I am also forced to ask, what does CAN-SPAM have to do with spam blacklists? I’m not seeing any reference to them in the law.

13. @drdigipol: @aliverson Let’s be clear… I am doing research for the field, not dealing w/ any specific case. No lawyer involved or needed.

13. @drdigipol: @aliverson CAN-SPAM defines what constitutes SPAM legally. Services blacklisting email that isn’t SPAM, but protected free speech is problem

14. @drdigipol: @aliverson Even if those services r prvt/not gov, that they blacklist orgs doing 1st amend protected outreach is a fundamental problem.

15. @aliverson: @drdigipol i.e. it is entirely irrelevant that a certain type of mail was not contemplated by CAN-SPAM but might still be blacklisted.

16. @drdigipol: @aliverson It’s 1 thing if indiv org blocks email from source, but services doing it 4 many clients very is different.

17. @aliverson: . @drdigipol Start with Comcast v e360. “Comcast is a private enterprise and has no obligation to honor the free speech rights of e360.”

18. @drdigipol: @aliverson I understand that prvt co’s have no obligation to honor speech rights. But what makes sense isn’t just about legal obligations.

19. @drdigipol: Regardless, many thanks for letting me pick your brain. Very helpful.

So, we need to rephrase the question yet again, so that it asks the question that is actually on @drdigipol’s mind:

Question re SPAM Blacklist Services: What r policies re advocacy orgs that send 1st Amend protected email?

This doesn’t change the answer to the question.  DNSBLs are allowed to set their own policies and abide by those policies, and there are no First Amendment considerations to be made, as Al correctly points out by quoting Judge Zagel who referenced a 1973 Supreme Court case in e360insight, LLC v. Comcast Corp., 546 F.Supp.2d 605, 611 (N.D. Ill. 2008), (“Comcast is a private enterprise and has no obligation to honor the free speech rights of e360. C.B.S. v. Democratic Nat’l Comm., 412 U.S. 94 (1973). “). C.B.S. is important here because you have someone who wanted to cause their political message to be disseminated by a private entity.  In C.B.S., they tried to make that happen using the Fairness Doctrine and the First Amendment. And the Supreme Court held that the First Amendment covers governmental actions, not the actions of private entities — even in cases of political speech. That means that this has been settled law since about the time that email was invented.

That said, Congress has passed two laws which touch on this area. The first is the CAN-SPAM Act of 2003.  Yes, that CAN-SPAM Act of 2003. 15 USC 7707(c) reads:

Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.

What is the practical effect thereof? ISPs are allowed to block whatever they will, no matter what definitions they choose to apply.

The second is the Communications Decency Act of 1996 (CDA). Yes, THAT Communications Decency Act of 1996. 47 USC 230 gives us the key provision:

No provider or user of an interactive computer service shall be held liable on account of–

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Of the two provisions the one in the CDA is the most well tested. The most tested part is the definition of “interactive computer service.” The key cite here appears to be Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.2003), for that definition.  For instance, it was relied upon in an unpublished opinion by California’s 4th District in Pallorium v. Jared, no. G036124, slip op. at 12 (Cal. Appl. 4th, January 11, 2007), to find that Jared was immunized by the CDA as an interactive computer service while he was running the Osirusoft DNSBL.

The CDA, then, generally provides the list provider with enough legal cover that there is no case against them for failing to carve out exceptions to their listing policies for people sending out email in the furtherance of political or religious ends.

Ultimate, our pleading plaintiff falls back to “just because they’re not breaking the law doesn’t make it right!” Which may be good theoretical argument.  There are lots of things that aren’t right, even if they may not be violative of some statute.

All of that said, there is not a fundamental problem at work here.  Yes, communication is more difficult for advocacy groups if they must obtain permission before sending email or run the risk of getting blocked.  But, the system is not broken.  There are lots of other ways to get the word out — and solicit people to voluntarily join a mailing list for future emailed updates.

I use Zemanta to suggest possible links for blog posts. As I was writing yesterday’s blog post, a suggested link came up dealing with CAN-SPAM and the definition of “spam”. That link shows how some people just don’t get it when it comes to permission-based marketing.

Here’s the money quote:

Look, you can flame all you want about unsolicited emails, but they’re part of doing business as long as you comply with the requirements and regulations stipulated. It’s time the over-sensitive types quit designating every unsolicited email as SPAM especially when the email passes all the tests for compliance.

The Bottom Line

I’m not recommending you ever truly SPAM anyone. I’m merely stating that relevant commercial email that complies with the regulations set forth by the US FTC is NOT SPAM no matter how many times you want to cry it.

The problem here is that the word “spam” is fairly meaningless in most contexts. When I first got started working on/with the Internet back in 1997, “spam” was a word that people understood originally dealt with excessive posts to USENET newsgroups. By that time it had also come to take a similar meaning concerning email.

The Spamhaus Project says:

The word “Spam” as applied to Email means “Unsolicited Bulk Email”.

And, unfortunately, the receiving community isn’t helping. As Laura Atkins points out:

Many of the large ISPs use “mail our users complain about” as their definition. With this definition, they do not have to argue permission status with a sender. The data shows that their customers complain about mail from that sender or with that URL. The ISPs are going to block, or deliver to the bulk folder, email that their users do not want.

So now, because some creative people in Congress came up with an acronym for a law touching email which involves the letters “SPAM” we have people thinking that there is a law which defines what spam is and is not. And the result is that we have at least three operative definitions of “spam” running around (and there are quite a few others).

What our intrepid poster wishes us to understand is that email which complies with CAN-SPAM cannot possibly, under any circumstances, be considered by spam by those who receive it. The lessons eventually learned (and mentioned in the second comment) is that your provider’s definitions and rules apply, even when they are more strict than CAN-SPAM’s definitions and rules, and, if you are going to mail a purchased list, you should use some other third-party provider to send that email out and use it to feed your list (a really poor practice in and of itself). But, these are the wrong lessons to learn.

First of all, let’s start with an assumption. As a rule those are bad and we usually desire not to assume anything. However, in this instance, I think there is one assumption that is pretty safe to make: InfusionSoft did not have addresses on the list that was mailed. That is to say that InfusionSoft did not learn that their client was emailing such a list because they actually received the mailing, but rather because they had received a complaint about it from someone else who did.

Talk about getting a relationship off on the wrong foot! Here is someone who is sending mass emails out which are prompting people to complain, and is then complaining that bad things happened.

Email is about relationships, not process. That’s a phrase that I generally detest because many people who work in the area misapply the concept. They think that sending email is about the relationships that they have with people who work for some ISP or large webmail provider. In many of those instances, it’s more about process than relationships now (unlike, say, 5 years ago). When they make those contacts at the ISPs because mail isn’t getting delivered and ask for help the following two questions usually come forth: Did you follow the process? Is something broken in our process?

But, sending bulk email is, in fact, about relationships, just not that relationship. Sending bulk email is about the relationship that the sender has with the recipient, not the recipient’s ISP. The question that didn’t get asked in our post was “why were enough people complaining about what I did that my provider shut me down, even though I had never caused problems before?”

That’s a relationship issue. And that relationship issue is one that has a direct impact on your ability to get mail delivered to the recipient in a timely fashion.

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I was reading the Terms of Service for an ESP today. Under the section entitled “Affirmative Consent” we read:

Clients may only use [the ESP] to send email to individuals who have either provided affirmative consent through an “opt-in” process that they want to receive the type of email communication being sent or with whom they have a pre-existing business relationship.

We won’t get into the misnomer of calling what is, essentially, an opt-out clause “Affirmative Consent,” but here we have another example of the dreaded “pre-existing business relationship” clause. This particular one, though, is worse because of the time that they allow you to claim that relationship.

Pre-existing business relationship means, when used with respect to the initiator and recipient of an electronic mail message, that–

A. Within the 5-year period ending upon receipt of such message, there has been a business transaction between the initiator and the recipient (including a transaction involving the provision, free of charge, of information requested by the recipient, of goods, or of services); and

B. the recipient was, at the time of such transaction or thereafter, provided a clear and conspicuous notice of an opportunity not to receive further messages from the initiator and has not exercised such opportunity.

In other words, if there was a transaction at any time during the last five years, then you are fair game. You could almost make a case that Section B is a limiting factor, only it includes the amorphous “or thereafter” which would allow the sender to include the required notice along with their mail — as long as it was sent during that five year window.

This ESP here is a tiny one and likely has such a policy in order to keep some of its larger clients. But, that doesn’t make the policy the right one, nor will it help with delivery. That’s really bad news for clients of this particular ESP because it appears that they only offer a shared-pool IP setup. That means that your company’s reputation could be hurt because all of their other clients are sending mail to people they have not communicated with in the last 4 years and 11 months.

The rationale for doing things this way is that people who have bought from a company before must be interested in hearing about what sales that company is having now. In the world of print, 5 years may even be about right for a re-engagement campaign to bring those customers back into the fold. But, in the world of email, 5 years is far too long to make this assumption make any sense. People receive far more email than they receive paper mail, and adding to that flood based upon a single five-year-old purchase isn’t going to endear a sender to the recipient.

Often times, we also see CAN-SPAM compliance given as a rationale for the use of the Pre-Existing Business Relationship-as-permission given the use of the phrase “transactional or relationship message” in the statute. As I have previously explained, CAN-SPAM does not contain a “prior business relationship” clause. The “relationship” contemplated by the statute is the relationship that directly relates to a single transaction and is determined by the primary purpose of the piece sent, not some over all “sense of the mail stream.”

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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?

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.

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?”