Image via Wikipedia

Gmail has been busy making some changes lately and not all of them are under the hood.

One of those changes is to their user interface.  If the From: domain doesn’t match the domain of the sender, then Gmail will now display the domain of the sender as well after a “via:” notation.  So, the new format will look something like this:

Sender Name email@example.net via example.com

Here is Google’s explanation of the issue:

Gmail displays this information because many of the services that send emails on behalf of others don’t verify that the name that the sender gives matches that email address. We want to protect you against misleading messages from people pretending to be someone you know.

And the way to get rid of the “via” statement?  Authenticate.  Seriously:

Gmail checks whether emails are correctly authenticated. If your messages are sent by a bulk mailing vendor or by third-party affiliates, please publish an SPF record that includes the IPs of the vendor or affiliates which send your messages. Or, you may consider signing your messages with a DKIM signature that is associated with your domain.

So, it’s not something that I would necessarily worry about, but if you want to get rid of the “via” statement it looks easy enough to do so.

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.

He very kindly responded:

Dear Mickey,

First of all, I thought the writer was a little naive about allowing spammers or web site owners to send her email.

I didn’t like her attitude about “come on one and all.” I have found (by experience) that if I let someone in my email by not giving permission, I have a real problem about getting them to stop and a lot of the time having their friends to come in, as well.

After reading her article I tried to compare it to what I do when I visit a web site. If the web site has a feature on it to find out more about the product or company, I invite them to send the info either by email or a daily, weekly, or monthly newsletter. I haven’t had any problem with getting these companies to stop sending me their info if I ask them or by clicking the unsubscribe link located most of the time at the bottom of their email.

As much as I try to keep the uninvited out, I’m forever receiving mail from the unethical spammers, anyway. I have found out (by experience) that if you tell them to stay out, they change a letter or number slightly and resend the email. It is an on going battle to say the least, but I work as hard as I can to keep these bums out of my email.

Love ya,

Dad

There you have it, folks.  His concern is that if you start sending him mail without permission that he won’t be able to get you to stop sending him mail when he wants you to.  That sounds pretty sane and rational to me.  If someone starts emailing without permission, why would their recipients expect them to then stop emailing at any point?

And the bottom line here: My dad, at least, sees people who who email without permission as bums who should be kept out of his inbox.

As I sit here punching out a quick blog post, it’s still about a half hour until what is supposed to be the huge announcement that Facebook is launching an email service.  So, I am going to take a couple of minutes to make some predictions.  And rather than predicting what an unknown service will do when it launches, I will predict what the launch of this unknown service with its unknown features will NOT do.

1. This will not be the Emailpocalypse.  There are tons of posts out there that are referring to this event as though it were the end of email.  Or, maybe the end of email marketing.  There have been tons of Emailpocalypse predictions before, none of which panned out.  Mom, Grandma, Aunt Millie, and your best girlfriend from work will not be giving up their existing email addresses to take advantage of this new Facebook offering.  (And, I’m coining the term “Emailcalypso” to counter such uses of Fear, Uncertainty, and Doubt.  Please feel free to spread the use around.)
2. This will not, in fact, “change the game.”  No, seriously, it won’t.  See prediction #1 for part of the reason why.  But, also realize that since Mom, Grandma, Aunt Millie, and your best girlfriend from work won’t be giving up their email addresses that people will still be able to reach them just as they always have.  Existing marketing efforts will not dry up in the hour following Facebook’s announcement.  Remember the Gmail Priority Inbox announcement?  That was supposed to be a game changer, too.  But, what has actually changed since then?
3. This will not kill Gmail or Yahoo Mail.  The fact of the matter is that lots of people like their existing freemail services.  While this new service may slow growth for them, they are highly unlikely to see account cancellations due to people using Facebook’s service.

Well, I’m now down to 9 minutes until this launch.  Am I right?  Am I wrong?  Feel free to sound off, and then let’s watch what really happens.

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:

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.

I’m also really happy to see Ken go. There was nothing quite so sad as finding an email detailing the hack journalistic exploits of the town drunk trying to write in such a way as to sound intelligent.

Just kidding. I looked forward to Ken’s emails every week because they provided a vital bit of industry intelligence that I couldn’t get anywhere else. I hope Ken lands on his feet and join with Al in hoping that his next home does a much better job of promoting him.

And Ken Magill, if you read this, let me know where you end up and you’re welcome to guest post here in the interim (with full editorial control). And I promise to be among the first to sign up for your newsletter wherever you land.

So, yesterday I put out a list of the bottom 10 posts of 2009. I promised then that I’d put out a list of the top 10 posts today, and here they are (in reverse order — #1 is really #10).

1. IP relisted despite no more mail being sent. It seems like I blogged about Barracuda a lot. Truth be told, I probably had more problems out of Barracuda in 2009 than I did anyone else. This post was about them relisting an IP address even though they could not have had any fresh complaints since there had been no mail going out over it in more than 30 days.
2. When is transactional mail not transactional anymore? This post was over what changes the nature of a mailing. In this case, it was a date on a membership card. Mail sent before the expiration date is transactional, but mail sent after is commercial marketing.
3. Barry Speaks: We won’t shut-up and eat your spam. This is one of those anonymous blog posts by the well-known “Barry”. In it, Barry explains that ISP’s don’t really care about senders’pain so much as they care about senders sending mail that the ISP’s customers actually want to get.
4. Yahoo! running (some of) Verizon’s Email Services. Talk about old news making the news again. In the course of investigating a blocking issue for my employer, I discovered that the mail server for the Verizon customer we were mailing was flowing through Yahoo’s service. The rest, as they say, is history.
5. Breaking: SORBS bought by GFI (with confirmation!)After reading on another blog that the SORBS DNSBL had been bought by GFI, I reached out for confirmation….and got it.
6. SORBS Closure Imminent. This was a post about the announcement by Michelle Sullivan that the SORBS DNSBL was in danger of closing.
7. The hard truth about email. This post, which comes in forth on the top 10 list for page views comes in first for the number of comments (and we love comments!). It’s a reminder for senders that the ISPs’resources are limited and tend to get overloaded during the holiday season.
8. Use Private Domain Registration and Go to Jail?. This post was a commentary on USA v. Kilbride, (9th Cir., 2009), which featured a section which, if I read it correctly, indicates that use of Domain Privacy services by marketers may well violate the CAN-SPAM Act.
9. Barracuda & EmailReg.org: Pay-to-play or just joined at the hip? This post was just plain fun to do. There’s some sort of agreement between Barracuda Networks and the EmailReg.org people, but no one outside of those two groups knows what it is. But that duck sure is loud.
10. A CAN-SPAM Checklist. This post had about 100 more page views than the runner-up. It’s a list of things that marketers need to make sure they’re doing to stay on the right side of the law.

And there you have it until next year.

Happy New Year, everyone!

1. 47 USC 230 Explained in English. This was mainly a link post. I wasn’t using Twitter back then or it might have just gone there, but 47 USC 230 is an important statute that has had application in everything from web hosting to spam filtering.
2. Barracuda’s Advertisement-pop-ups Category. This post might have been just a little bit whiny on my part. Barracuda sets websites into certain categories, and they put all websites dealing in advertising into the “Advertising-pop-ups” category. I still think it’s poorly named, and that their “this is industry standard” excuse is just a canard, but it’s their system.
3. You want me to pay to keep from being blacklisted? This post was about Emailreg.org, which still, even to this day, appears to be a shadow for Barracuda. It’s a whitelist mainly used by their appliance, and it’s hosted on their network. And you have to pay money to be included on it.
4. Lycos Europe Mail Shutdown Date. This one is pretty much what it looks like: an announcement about an impending domain demise as Lycos Europe shut down its mail operations.
5. Russians Selling Spam Lists. Here’s another one that would likely have been posted to Twitter had I been using it back when I posted it. Symantec posted some evidence that Russian spammers are selling email lists.
6. Can I use images to display my URIs?. This is a brief post on how using an image instead of text to display a link in your email may not be the world’s greatest idea.
7. Hypertouch Loses. Here’s a quick post on a small ISP losing a court case. My beef with this one was a quote by a defense attorney saying that a trial court level case set a precedent.
8. Could Spamford be going to jail?. Here was another post that maybe should have gone to Twitter instead of being a post on the site. Sanford “Spamford” Wallace was being threatened with some jail time for contempt of court for violating an injunction from his loss to Facebook.
9. Video in Email. Here’s a post I really wish more people had seen as it discusses a topic that I get asked about a lot: Can we embed videos into email. The answer, unsurprisingly, is that it’s not any more likely to succeed now as it was three years ago.
10. Reading Terms of Service. How often do you read the Privacy Policies of the sites you visit? How often do you think your customers/recipients do?

As reported on Spamsuite, the 9th Circuit opinion in USA v. Kilbride, (9th Cir., 2009) has been released. This is primarily an obscenity case against the defendants for sending pornographic spam email. But, it also includes a challenge to 18 U.S.C. § 1037 on vagueness grounds.

18 U.S.C. § 1037 is the part of the CAN-SPAM Act that deals with fraud and falsity in headers. And, from appearances, the Defendants were using false information in their registration. One of their arguments (and the Court’s response to it) appears as follows:

Defendants also argue that the definition of “material falsification” renders § 1037 unconstitutionally vague specifically as to whether it would criminalize private registration of a domain name. As testified to at trial, private registration is a service that allows registration of a domain name in a manner that conceals the actual registrant’s identity from the public absent a subpoena. We fail to perceive any vagueness on this point. 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.”

(from page 29 of the PDF)

So, what does this mean for the email marketer? Don’t use private registration services like Domains By Proxy or the various domain privacy services offered by several providers. As Laura points out, it’s one of the things that identifies you as a spammer. And given this pronouncement by the 9th Circuit, it’s probably also now a violation of your Email Service Provider’s rules of use or terms of service.

Not only does it identify you as a spammer, but if the FTC or the US Attorney’s Office starts reviewing your practices with an eye toward prosecuting you for CAN-SPAM violations then your attempt to hide behind the service then becomes a violation in and of itself.

Hat Tip: Thomas O’Toole

Related articles by Zemanta

• Court Rules That Using Domain Registration Privacy Services Represents ‘Material Falsification’ (techdirt.com)
• Use a Domain Privacy Service? There’s a Prison Sentence for That! (marketingpilgrim.com)