Publication Date: January 17, 1997

The Battle Against Bulk E-Mail

By Sue Mellen

Companies looking to shift their direct mail efforts to the Internet should take note: The battle against so-called junk e-mail has escalated in recent months, with America Online and privacy rights groups taking front-line positions against the practice.

On one side of the conflict are direct marketers, who have found bulk e-mail to be an almost cost-free means of reaching hundreds of thousands of potential customers. On the other side are online services, Internet service providers and non-profit organizations who say electronic mailboxes should be as inviolate as anyone's home. The standard-bearer for the defense, America Online, has drawn a line in cyberspace against a Philadelphia-area company called Cyber Promotions.

"We really had no choice but to take action. Junk e-mail had become the No. 1 complaint from our subscribers. Cyber Promotions alone was sending mail bombs to 900,000 of our members once or twice a day. Our total volume is about eight million. As you can see, Cyber Promotions was taking up a large amount of our server capacity," explains David Phillips, AOL's assistant general counsel.

It only makes sense, says Phillips, that his company was a primary target for the marketing firm. With seven million members, AOL stands as the world's leading online service. Fertile ground for "spammers," the term now commonly used to denote those who send e-mail in huge batches as well as those who make inappropriate or en masse postings to Internet newsgroups. Bulk mailers can avoid handling and postage costs by sending electronic, rather than paper, solicitations. This effectively allows marketers to shift costs to ISPs, individuals and businesses, Phillips says.

"Obviously, it costs a great deal for a company like AOL to handle this volume of e-mail. And on the consumer's end, there is significant cost in the time it takes to sort out junk mail from letters from your mother and uncle. It's even more of a critical factor in a business environment where, now more than ever, time is money."

Spamming the Corporate World

Because bulk mailers first aimed their missives at consumer-based services such as AOL, unsolicited commercial mail began as a consumer issue. But bulk mail is finding its way into corporate mailboxes everywhere. On its Web site, the Dresher, Pa.-based Cyber Promotions claims that "approximately 90 percent" of its recipients are "small business owners or opportunity seekers" with the remaining 10 percent "comprised of medium to large corporations, including Fortune 500 companies. … Our research has revealed that businesses and professional organizations are the most receptive groups to Internet marketing."

One complaint about bulk e-mail is that it often resembles personal or business-related mail. It's only after opening the message that the recipient realizes it is an advertisement, a solicitation, or the electronic version of a pyramid marketing scheme.

"Just before the holidays, I got mail from someone claiming that his family would lose its home by Christmas unless everyone getting the message sent him $1. That's the kind of stuff these spammers send out over the 'Net," says James P. Love, director of the Washington, D.C.-based Consumer Project on Technology. Love's organization deals with telecommunications regulations, privacy and intellectual property rights. CPT is part of the Center for the Study of Responsive Law, founded by the granddaddy of all consumer advocates, Ralph Nader.

And AOL's Phillips points out that bulk mailers are not always choosy about the content of mail they will agree to send for clients. "They'll send anything to anyone. We know of some kids who have gotten ads for pornographic Web sites in their mailboxes," he says.

Logically enough, the most active Web users will have the biggest spamming problem because it's easy to capture e-mail addresses. Users who register with multiple newsgroups and on numerous Web sites will eventually find unsolicited mail in their mailboxes.

One way to deal with the bulk mail issue, says CPT's Love, would be for marketers to adopt a tagging system. If a domain (originating address) ended in a tag designating it as a marketing site, recipients could readily distinguish those messages from personal or business communiques. He also believes tagging could be useful throughout the Internet, for instance helping parents recognize sites offering sexually explicit material.

But without regulatory muscle, such a system depends on the cooperation of direct marketers, who have little to gain and a great deal to lose from such a system. Cyber Promotions, for example, claims to maintain a recipient list numbering 1.1 million. The company also asserts that its service is effective because an advertisement stays in a recipient's inbox "until it is read." There would be little benefit in providing tags that would prompt recipients to discard messages before reading them. (The closest thing to spam-related legislation is a Federal statute, USC 47.5.II, section 227, barring junk faxes, which some experts believe can be broadly interpreted to include e-mail. But there is currently no legislation that deals specifically with e-mail.)

At AOL, experience has shown that depending on marketers' cooperation is an uncertain solution to the bulk e-mail problem. As the extent of the problem became clear at the beginning of 1996, the company sent "cease and desist" letters to offending addresses and asked ISPs to refuse service to the offenders unless they complied with the AOL request. The Internet providers and some of the bulk mailers cooperated fully. But some marketing companies chose instead to initiate what Phillips characterized as a "cat-and-mouse game," changing their addresses rather than complying with the AOL request. The big offender to AOL was Cyber Promotions, with the game eventually being played out in the courtroom.

The Legal Battle

Last April, Virginia-based AOL filed suit in federal court against Cyber Promotions, contending that, as a private Internet service, the company had the right to protect its subscribers' privacy. Around the same time, the bulk e-mail specialist filed its own suit in Pennsylvania claiming that AOL interfered with its right to do business by bouncing back hundreds of thousands of incorrectly addressed messages and prompting its ISP to cancel service. Cyber Promotions won a temporary injunction against AOL, but the order was overturned in appeal. Although the legal battle is likely to continue, AOL currently has the right to block messages from the mega-mailer and other similar businesses.

Cyber Promotions has run into trouble with other online services. In a December 1996 resolution to a trademark infringement lawsuit filed by Prodigy Services Corp., Cyber Promotions was ordered to immediately cease using Prodigy's name to deliver e-mail advertisements. And CompuServe recently filed suit claiming that, by sending its members unsolicited e-mail, Cyber Promotions is trespassing on private property: i.e. CompuServe's private parcel of the Internet. Judgment has yet to be handed down in the case.

Sanford Wallace, president and founder of Cyber Promotions, has his own interpretation of the bulk e-mail issue. Wallace says AOL opened the door to widespread commercialization of the Internet and, by extension, ushered in the Golden Age of Spam.

"A few years ago, AOL made the business decision to help turn the Internet into a commercial medium. By doing so, the company accepted the risk that the medium would no long be under its control; it would become a public realm," Wallace contends.

Internet users, he says, have the same level of privacy consumers experience in "the real world. When you have a baby in the real world, the hospital gives your name to all kinds of companies selling baby products." Ethics are no better or worse in the world of electronic marketing, Wallace says.

Nevertheless, many online services and ISPs are determined to shield their members from unsolicited mail. As of October, AOL began offering subscribers Preferred Mail, a system for filtering out messages from a number of known bulk mailers, including Cyber Promotions. Preferred Mail employs a formula based on the amount of mail received from an address and the number of subscriber complaints related to that address. If the criteria are met, mail from the address is rejected by the AOL server before it is ever delivered. A drawback to the system is that it will block only specified addresses, and, as AOL's Phillips notes, some marketers are quick to change or obscure address information to avoid such filtering.

Keeping the Fight at Home

Despite the scope of the problem, the major online services are determined to beat the bulk mail problem on their own, without opening the door to wide-ranging regulatory intervention. Besides potentially stunting the growth of the Internet industry, over-abundant regulation might make it even easier for unscrupulous spammers to prey on unwitting victims, asserts Carol Wallace, public relations director for Prodigy and no relation to Cyber Promotions' Sanford Wallace.

"The wrong type of legislation might lull people into a false sense of security, thinking spammers are no longer a problem. Consumers should instead take a common-sense approach to the problem, realizing that the Internet is a public medium and there are going to be some unsavory types out there. Never give out your e-mail address, phone number or real address unless you are absolutely sure of where it is going," she advises.

At AOL, battle commanders emphatically declare that it is up to the industry to defend its own backyard.

"We'd like to see some limited legislation related to a spammer's right to hide behind fictitious addresses. But basically, we think that we in the industry are in the best position to understand and fix the problem. We believe that, under current law, we already have that right," says Phillips.

Some Anti-Spamming Hints

• As Carol Wallace, public relations director for Prodigy advises, "Never give out your e-mail address, phone number or real address unless you are absolutely sure of where it is going." This is sometimes difficult, especially when you are seeking responses to academic or scientific research, but follow the rule whenever possible.

• Immediately return unwanted mail to the senders. Legitimate marketers will include "return and remove" forms in their messages, which should result in your name being erased from their mailing lists. To thwart the more unscrupulous sort, you may have to sort through transmission information to find the domain, then compose and send your own message to have your name removed from their list.

• Contact your own ISP, along with the sender's (the information is contained in transmission data). Both companies have an interest in controlling unsolicited mail.

• In a business setting, let your system administrator know about the problem. Many groupware products, including Lotus Notes and Novell GroupWise, can be configured to block mail from designated addresses.

• A Usenet newsgroup devoted to e-mail issues can be found at news.admin.net-abuse.email. Help is also available from several spam-fighting companies and Web sites. A page with the descriptive title of Fight Spam on the Internet! offers technical advice while Zero Junk Mail offers to send "cease and desist" letters to a constantly updated list of bulk mailers (as well as telemarketers and direct mailers). "Bulk mailers aren't too impressed by single letters coming from individual consumers, but they will have to pay attention to organizations like ours that represent thousands of users," says David Kopans, founder of the four-month-old Zero Junk Mail.

Sue Mellen writes from Tyngsboro, Mass.

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