Dear FCC,
I run an anti-spam blacklist which is in use by dozens of organizations across the world. (“Thousands” if you count my customer’s customers who are impacted by my data.) Additionally, my largest customer (whom I’m not permitted to specifically name) is a Fortune 100 company and they use my “invaluement” data as an integral part of the spam filtering product they sell, which is an industry-leading anti-spam appliance currently used by many corporations in the U.S. (and world-wide). My second largest customer is Cox Communications, and they currently outright block incoming spam based on the data that I provide to Cox Communications
Therefore, as shown, my services are on the ‘front lines’ in the effort to block spam from people’s e-mail boxes and literally millions of mailboxes of U.S. citizens are directly effected by my efforts.
You can learn more about my services at my web site: http://dnsbl.invaluement.com/
I am concerned that provisions in this proposal where ISPs are told that they are “not allowed to prevent any of its users from sending or receiving the lawful content of a user’s choice over the Internet” Specifically, I’m concerned that this might unravel some or all of the provisions of 47 USC 230 which give ISPs and technology providers immunity from civil prosecution in matters of blocking content which is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected” (as quoted in 47 USC 230)
Basically, sending of unsolicited bulk e-mail is fully legal in the United States and not prevented by the CAN-SPAM act. At the same time, an ISP and/or their spam filtering technology provider can rest assured that they will win in court if sued by a fully-legal and fully CAN-SPAM-compliant entity which is sending unsolicited bulk e-mail. If this were not the case, such technology providers would be sued out of existence, and ISPs would be forced to so loosen their spam filtering systems such that Americans would suddenly find their inboxes inundated with a large number of unsolicited bulk e-mails every day--and they would have no recourse but to spend time manually deleting those messages because any technology provider who dared help the mailbox holder would be subject to devastating lawsuits.
Sure, I have read the FCC documentation where it is stated that exceptions will be made to allow content blocking of spam and other harmful content. However, this issue is not always clearly defined.
For example, what happens if an e-mail marketer sends out an unsolicited bulk e-mail advertisement to 500,000 recipients, but includes 50 fully confirmed-opt-in recipients in that e-mail campaign. I fear that the ISP (or technology provider) would then be legally liable for blocking those 50 messages which would be ‘wanted’ by those 50 recipient’s “choice”. This loophole could create situations where e-mail marketers get all their friends and families to sign up just as a trumped-up favor with the purpose of creating a legal “setup”--so that the ISPs and anti-spam technology providers would then be forced to impose these unsolicited bulk e-mail messages (aka “UBE”) on the other 499,950 recipients.
Moreover, when the FCC documentation (I mentioned earlier) tries to address this by describing “exceptions” for “spam”, that is a term that defies definition and which is too broad and controversial to enforce. Additionally, a common tactic in the industry is for a recipient’s e-mail information to get sold and resold due to one single form the recipient filled out on a web site years ago where they didn’t notice the “fine print” which stated that they gave “permission to receive advertisements from 3rd parties”. This is a common problem. Probably, half of everyone you know has unknowing done this at least once.
The problem here is that, while the recipient may be able to unsubscribe to each new sender’s distribution list, they then have no ability to unsubscribe to the “master” list where their address’s distribution originated. And even if they could, they still don’t have the ability for that unsubscribe to the “master” list to flow downhill to all the bulk mail senders who previously purchased those addresses. Additionally, the recipient does not have an ability to even “connect the dots” between these so-called “opt-ins” that were transferred to 3rd parties. Therefore, the recipient has no reasonable means to trace each new advertisement received back to the original signup which started this process. To the recipient , these all look like unsolicited advertisements, even though the sender emphatically claims that their messages are “permission based marketing” and “not spam”. (Therefore, such senders will be convinced that your “spam” exceptions do NOT apply to them, and they WILL test this out in the court--and anti-spam vendors like myself will suffer through that process, including the economic costs of that process!)
For this reason, there is now an “industry standard” for ISPs and spam filtering technology providers to take the stance that--in the event that the recipients cannot reasonably know which signup they did in the past generated the advertisement--and if the vast majority of recipients (but not necessarily all) believe that the e-mail advertisement is unsolicited--then such messages are considered “spam”--and are worthy of being blocked. In short, transfer of COI (“Confirmed Opt-In”) to a third party is generally NOT recognized anymore within the spam filtering industry--unless the advertisement makes it so abundantly clear exactly how and when the original signup occurred that the recipient can therefore know why they are receiving the message and know what and when they did a signup to cause them to get on that sender’s distribution list. (Btw-most of the sneaky spammers which my blacklists block are not nearly ethical enough to follow such practices.)
While the CAN-Spam Act lacks “teeth” and generally legalizes the sending of unsolicited bulk e-mails, it at least strives to make the process honest and transparent. Therefore, requiring that the recipient have a full understanding of the (attempted) 3rd party transfer of COI, such that the recipient can reasonably trace this back to their original signup, is in keeping with the spirit of the CAN-Spam Act’s desire to maintain transparency and honesty in e-mail marketing. Recipients having to endlessly play the “whack a mole” game to various bulk advertisements which attempt to transfer COI from a third party, with no reasonable way to “master” unsubscribe or to even know where to “master” unsubscribe (so as to prevent further distribution of their e-mail address)--or, again, recognize where they originally subscribed--this all (at least) breaks the spirit of the CAN-Spam Act.
Finally, the scenario I described above (where an e-mail marketer tries to manipulate the system) is just the tip of the iceberg. The FCC will fail if it tries to codify all the various exceptions and manipulations for stopping spam--and then the spammers will attempt to “game the system” using those very words in unintended ways. And some judges will follow along because “well, that is what the law says,” even if that result was not intended by the FCC.
That is why the free market works better than most of this government regulation. Some ask me, “Rob, why should you have so much power over what gets into people’s inboxes?” My answer is simple. The day I abuse that power is the day I start losing customers. If my customers begin getting too many complaints about my anti-spam blacklists leading them to block too much e-mail that is actually desired by the recipients, they will stop using my blacklists, and they will simply choose to not renew their subscription the next time their renewal date comes along. Therefore, I suffer a tremendous economic penalty if I abuse my (delegated!) authority and blacklist IPs and domains for messages which are really desired by recipients. And the reaction time from my business making such mistakes and then suffering the consequences is rather fast and downright brutal.
In contrast, if I’m correct and Net Neutrality becomes a spam sender’s dream, and an ISP’s abuse dept’s and anti-spam technology provider’s nightmare, then by the time the damage is done, the crafters of these rules will probably suffer very little consequence to their own livelihoods. But much damage to the livelihoods of anti-spam technology providers might occur in the meantime. Additionally, the productivity of the American worker will suffer much over many months or years before such mistakes will have time to get corrected. Why? Because the additional spam allowed in their inboxes will slow them down. And this will damage the U.S. economy at a time when we need all the help and efficiency we can get.
But if you must proceed, at the least, please provide a provision which specifically states that these rules or law do NOT supersede the provisions of 47 USC 230, particularly with that law’s protections of ISPs and technology provider’s abilities and right to block or limit e-mail. And please make that statement unqualified, or else the qualifications you think might be helpful may actually come back and bite us all as spammers and unethical e-mail marketers later use those words in unintended ways to game the system.
Thanks for considering this request and input.
Robert K. McEwen d.b.a. “PowerView Systems”
(maker of the invaluement.com anti-spam blacklist)
