Monthly Archive for March, 2008

More about FBLs and unsubscribes

Published
by
laura
31Mar
in Delivery Improvement
.

In the comments of the last post, Gary DJ asked an insightful questions and I think my answer probably deserves a broader audience.

How can ESPs honor unsubscribe requests from ISPs without FBL programs (read: Yahoo!) if senders are not aware that subscribers are asking to be removed (via “Mark as Spam” links)? Yes, we can tell which clients are “good” and which are “bad,” but will continue to send to that Yahoo! recipient until we know better.

I think the disconnect here can be boiled down to: is your goal to send mail people do not complain about or is your goal to send mail that actively engages and interests your recipients? If your goal is to send mail that people don’t complain about, and thus get into the inbox at ISPs, then you are going to see problems with ISPs that measure user response and do not provide a FBL to senders. If your goal is to send mail that actively engages and interests your recipients, then you do not need the FBL in order to avoid being blocked.

I agree it would be nice if ISPs were to provide a FBL to all senders, but realistically, that is not going to happen. So you need to look at the data you have about your mailings (or as an ESP about your customers’ mailings) and make reasonable assessments of how the recipients are responding to the mail.
If the mail is being received badly, then the sender needs to take a step backwards and look at their overall email marketing program. One of the things I hammer into clients is list hygiene. Keep those lists clean. One way to do that is have a set process for engaging users after some period of time of inactivity. If you are actively only mailing people who are engaged and responsive to your mails, and purge off people who never click or never open a mail, then those Yahoo users that you mention will eventually be removed from your list.

If your Yahoo complaints are so high that you are getting blocked, you have bigger issues. Again, step back, look at your program and focus on relevancy and engagement.

Send mail that is relevant, send mail that your users want and, generally, you will not see complaint based blocking.

3 Comments

FBLs, complaints and unsubscribes

Published
by
laura
28Mar
in Delivery Improvement
.

On one of my mailing lists there was a long discussion about the Q Interactive survey. Some of the senders on the list were complaining that unless ISPs provide FBLs they should not use complaints to make filtering decisions. The sender perspective is that it isn’t fair for the ISPs to have data and use it without sharing it back so that the senders could remove complainers.

This deeply, deeply misses the point.

The ISPs are in the business of keeping their users happy. Part of that is measuring how users react to mail. This includes providing “report spam” or similar buttons when they control the interface. Some ISPs have chosen to share that data back with senders. Some ISPs have made the choice not to share that information back.

But even the ISPs that share FBL data with senders do not expect that the only thing a sender will do is remove the email address. ISPs expect senders to actually pay attention, to not send mail that their recipients do not want. They expect that ESPs are going to notice that one customer has consistently high complaint rates and actually force their customer to stop sending mail that recipients think is spam.

Senders should keep track of complaint rates. Measure them per send. Do not waste time whining that this ISP or that ISP will not set you up with a FBL. Take the data from those ISPs that do have FBLs and measure it. It is extremely unlikely that a mailing will have grossly different complaint rates between ISPs. You have all the data you need in order to evaluate how your recipients are perceiving your email.

ESPs and senders who think that their only response to FBL complaints should be to remove that email are the ones most likely to have filtering and blocking problems. The ISPs are giving them valuable data that they can use to evaluate how their emails are being received. Instead of being ungrateful, wagging fingers and blaming the ISPs for not giving them the data they want, senders should spend more time focusing on what they can discover from the data that is shared with them.

A FBL email is more than an unsubscribe request, senders should stop focusing on the unsubscribe portion of the FBL process and focus more on the recipient feedback portion of it. What can you learn about your mail from a FBL?

3 Comments

Report spam button broken: an ISP perspective

Published
by
laura
27Mar
in Industry
.

This press release has been discussed in a lot of groups and sites I read. One of my favorite comments comes from one of the filter developers at a large ISP. He was asked “does the overuse/misuse of the this-is-spam button significantly affect the ability to do your job?” His response, reposted with permission,

The customer is always right. In my opinion, there is no such thing as ‘overuse’ of the report spam button. The more feedback we get, the better. Our job is to keep the user’s inbox in the state they want it. The more they tell us what they do and don’t want, the clearer picture we get about who is sending unwanted mail. So I would say, yes, it does affect my ability to do my job in that it enables me to actually do my job.

It might cause my job to involve more detailed research into people’s preferences and what to do with mail that people disagree about, but I don’t see that as a problem.

Just because a marketer doesn’t like that we consider our users’ opinions to be more important than theirs is not really a problem either as far as I’m concerned. I’m here to serve my users, not them. They can either send mail that people don’t respond negatively to, or I can put their mail in the spamfolder. It’s not like they are going to make any money by repeatedly mailing people who think their mail is spam anyway.

If senders really want ISPs to change things, that is one of the people they are going to have to convince to make the change. It does not seem that the current methodology to effect change is being effective. Senders who want more cooperation from receivers need to start listening to him, and his peers in the industry, and start making misuse of the this-is-spam button important to them.

The ISPs are open to feedback. Just yesterday I posted the request from AOL to get feedback on how ISPs and ESPs are using the data AOL is generating. They are actively looking at how bounce rates are used in order to send clearer, more useful data back to senders (bulk senders and ISP senders). Cooperate with them here, help them improve their processes and maybe they will be more open to listening to senders in the future.

10 Comments

How do you use bounce data?

Published
by
laura
26Mar
in Industry
.

AOL is looking for input from ISPs and ESPs to better understand how you handle data sent to you by AOL.

In regards to bounces - users unknown, specifically - could you please explain the following:

ESPs:
When do you take action on clients because of bounces? What is your threshold for acceptable, and not? Do you have an escalating level of punishment for people who break your thresholds?

ISPs:
What is your threshold for “acceptable” in regards to inbound mail streams and “users unknown”? What do you do when that threshold is breached?

You can send answers to me directly (laura-blog (at) wordtothewise.com) and I will forward them to the folks at AOL. You can also post them in the comments and I will make sure the AOL folks see the answers.

2 Comments

Report spam button broken

Published
by
laura
25Mar
in Delivery Improvement
.

Q Interactive and Marketing Sherpa published a press release today about how fundamentally broken the “report spam” button is. They call for ISPs to make changes to fix the problem. I think the study on recipient perceptions is useful and timely. There is an ongoing fundamental paradigm shift in how ISPs are handling email filters. ISPs are learning how to measure a senders collective reputation with end users, and, more importantly integrate that reputation into the equation used to determine how to filter and deliver incoming email.

Q Interactive and Marketing Sherpa acknowledge this change in the report:

Among the most striking findings of the study is the fact that the definition of spam has effectively changed from the permission-based regulatory definition of “unsolicited commercial email” to a perception-based definition centered on consumer dissatisfaction.

Yes, exactly. ISPs are blocking mail that their users are saying they do not want. From both an end user and an ISP perspective it is exactly what they should be doing. End users want the email they want and do not want the email they do not want. The ISPs have given the end user a way to provide feedback and make mail they do not want stop arriving.

Further, the press release says:

Over half of the participants, 56 percent, consider marketing messages from known senders to be spam if the message is “just not interesting to me”, while 50 percent of respondents consider “too frequent emails from companies I know” to be spam and 31 percent cite “emails that were once useful but aren’t relevant anymore”. (Respondents could select more than one answer for multiple questions in the survey.)

This should be a giant wakeup call to marketers. People who have consented to receive your mail get annoyed if you send to much to them, or send mail they’re not interested in to them, or send mail that is no longer relevant to them. Then they hit the “report spam” button. This hurts a sender’s reputation at an ISP and may result in mail being blocked or deferred by the ISPs.

This is great information for the marketer. You need to know your audience. You need to send them email at the rate they want. You need to send them email that is relevant to them. This is the same thing that myself and other email delivery experts have been hammering at over and over again: send relevant mail that your recipients want to receive. If you do this, then you will not have delivery problems.

The press release, however, comes to a different conclusion.

As an email marketing partner for many Fortune 500 brands, we constantly seek to understand email deliverability and consumers’ perception of online marketing messages,” said Matt Wise, president and chief executive officer of Q Interactive. “What this survey uncovered is a major disconnect in consumers’ understanding and use of the ‘report spam’ button, as well as consumers’ definition of spam from ‘I didn’t sign up for it’ to ‘I don’t like it’ — all of which signal that the current system of email spam filtering is a broken process.”

“Spam complaints are the primary metric that ISPs use to determine email delivery. This study shows that consumers don’t really understand how the complaint system works and that emailers don’t understand how consumers define spam,” commented Stefan Tornquist, research director, MarketingSherpa.

To address this problem, Q Interactive calls for ISPs, marketers, advertisers and publishers to come together with industry associations such as the Interactive Advertising Bureau to agree on a solution that is beneficial to consumers and all interested parties. To begin the dialogue, Q Interactive suggests two points for discussion:

– Replace the broken ‘report spam’ button with buttons that more clearly
indicate consumers’ intentions such as an ‘unsubscribe’ button and an
‘undesired’ button.
– ISPs should categorize email senders based on their practices to
identify and reward senders who follow best practices in transparency
and permission.

Uh… What?

I think this is a demonstration of the disconnect between traditional marketing (telemarketing and direct mail especially) and email marketing. In traditional marketing, annoying 100 people in order to make 1 sale is an acceptable ratio. Print marketers are hard to find, recipients do not have an easy way to send negative feedback, and there are a lot of barriers to giving any feedback other than a purchase. There is no disincentive for marketers not to send so much mail that they annoy recipients. In email marketing, however, the field is not tilted so far in the marketer’s favor. Recipients, at least those at major ISPs, can provide feedback about the email marketing they receive. They have a way to communicate back to the marketer that they do not have in other forms of marketing.

This ability to provide feedback means that annoying 100 people in order to make 1 sale is no longer an effective marketing approach and, more often than not, results in blockage by an ISP. As I see it, there is zero incentive for ISPs to change this. End users like the ability to provide feedback and to make the junk in their inbox stop, even if they cannot effectively make it stop in their mailbox. In fact ISPs are including more and more feedback from the end user in their reputation calculations.

Reputation is not just about your reputation with the people at the ISPs maintaining the filters and filtering mechanisms. More and more your collective reputation with endusers affects your reputation at ISPs. For ISPs this seems to be an effective way to make delivery decisions and I do not expect it to change in the near future.

What does this mean for senders? Send relevant, timely mail that your recipients want to receive. Stop treating your recipients as a monolithic group and gambling that statistically you are going to find someone that will positively respond to an email and and start treating recipients as individuals that you are trying to communicate to directly.

3 Comments

How much mail?

Published
by
laura
21Mar
in Delivery Improvement
.

Yesterday I had a call with a potential new client. She told me she had a list of 4M Yahoo addresses and she wanted to mail them twice a day. Her biggest concern was that this volume would be too much for Yahoo and her mail would be block solely on volume. As we went through the conversation, she commented that this list is also being used by someone else she knows and they were getting inbox delivery at Yahoo on every mailing.

From other bits of the conversation, I suspect that these are not the only two people using this list, but I have no feel for the volume. But how much email is each person on that list receiving a day?

I have a current client who is in a similar field to the above potential client. I signed up for their list back in December. Since then I have received 1728 emails to the address I used on their site. 4 of those emails have actually been from my clients, the rest were stolen by a partner of theirs and sold off to all sorts of mailers. Yesterday I received 40 emails.

I just cannot see how this is a valid, long term business model. The bulk of these mails are advertising payday and other kinds of loans. Some of them are duplicate offers from the same senders (judged by CAN SPAM addresses) using different From: lines. The mailbox these mails are filtered into is completely useless, it has been swamped by loan offers. I cannot imagine that anyone, even someone looking for a loan, is receptive to this much email. The only thing I can figure is that the mailers believe that if their email is the one at the top of the mailbox at the exact moment the recipient gets most desperate for money in their bank account tomorrow they will make the sale and get paid.

This model is going to be less and less viable as time goes on.

On the permission level, there really is no permission associated with that email address. Sure, I could call up the former client of mine who mailed that address today and challenge them to show me where they got the address and they would probably tell me they bought it from that company over there. But when I submitted my email address to my client’s site, I did not expect to receive offers for Mickey Mouse Collectible Watches. It certainly is not what I signed up for.

Not only is the permission tenuous, but ISPs are moving away from a permission based model for access to their subscribers. What they really care about now is how recipients react to email. An email marketing model based on getting as much email in front of the recipient as possible will be harder and harder to be profitable as ISPs get better at measuring how much their subscribers want email. The mailers who get good delivery are those are able to make the mail interesting, wanted and relevant to recipients.

It is difficult for me to imagine a case where you can make 2 emails a day relevant to 4 million recipients.

6 Comments

e360 v. Comcast: part 4

Published
by
laura
20Mar
in Legal
.

Today I have a copy of the e360 briefing on Comcast’s motion for judgment on the pleadings.

On a superficial level, the writing of e360’s lawyers not as clear or concise as that of the Comcast lawyers. When reading Comcast’s writings it is clear to me that the lawyers have a story to tell and it has a beginning, a middle and an end. They take the reader through the setup, then through the evidence and case law, then proceed to the remedies requested. There is a clear narrative and progression and it all makes sense and the reader is never left standing. This briefing meanders hither and yon, prompting one person to ask was this written on the back of a placemat in crayon.

I still think e360 is misunderstanding or misstating some crucial facts in this case.

e360 argues that because they comply with CAN SPAM, then their mail is therefore not spam. This is not true (see Al’s post, and my post and John’s post). Complying with CAN SPAM does not mean you are not sending spam. I will go even farther to say that sending super-duper-double-confirmed-with-a-cherry-on-top-opt-in email does not mean you will always get through an ISPs filters. The ISPs have moved away from being in the position of having to decide between a mailer who insists a recipient opted in and a recipient who marks mail as spam. Now, the ISPs look at complaints and if you annoy your recipients, then the ISP is going to filter that mail. It is all about relevancy. It is all about not sending mail that is going to make those users hit the “this is spam” button. And endusers have never cared about permission, spam is email they do not want and if you send it, they will complain about it.

They also seem to have this impression that Comcast is letting all e360’s competitors send email to Comcast. Again, it is all about relevancy. If e36o’s competitors are sending mail that users do not complain about then yes, that mail is going to get through. The problem here is not that Comcast is picking and choosing which ESP gets to mail the users, it is that the recipients are choosing which emails they do not object to. Send emails recipients find useful and relevant, and it does not matter that you scraped their address off a website, they will not report it as spam.

Comcast points out that under the Communications Decency Act (CDA) they are not liable for blocking content. The CDA provides for “Good Samaritan” blocking and screening of content under 2 separate circumstances: 230(c)(1) and 230(c)(2). 230(c)(1) says

(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

ISPs are not liable for anything said by someone else on their service or network. The issue here is not activity by someone else on the Comcast network, though, the issue is activity by Comcast. Accordingly, none of Comcast’s filings have claimed immunity under 230(c)(1).

Comcast has claimed immunity under 230(c)(2), which says

2) Civil liability
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).

Under section (c)(2), it seems Comcast is not liable for actions taken in good faith to block material “otherwise objectionable.” Curiously, in the briefing submitted today, e360 ignores 230(c)(2) and speaks only to case law regarding section (c)(1). e360 even states

e360 is not seeking to hold Comcast liable for the actions or statements of a third-party, rather e360 is seeking to hold Comcast liable for its own actions: Comcast’s indiscriminate and improper blocking of e360’s emails.

If this is truly the case, then why did e360 spend an entire page (out of a 16 page brief) discussing case law around 230(c)(1)?

e360 does comment later that Comcast clearly has immunity to block spam, if it deems spam objectionable, but that as e360 does not send spam, the mail should not be blocked. I think this is tenuous, and may be an issue only because Comcast called e360 a spammer and the email spam. e360 further claims they can produce proof of opt-in for every email address they send email to. I expect that Comcast has e360 email to addresses that never signed up to receive the email (role accounts, employees, etc). I also fully expect e360 to produce opt-in data about those accounts. I am actually looking forward to seeing this question litigated: what constitutes proof of opt-in.

The next argument is legal in nature. e360 says that Comcast is interfering in a business relationship. Comcast says that e360 has a statutory obligation to state the exact relationship that is being interfered with and that Comcast must know of the relationship. e360 argues that as Comcast is blocking the mail, Comcast knows exactly who is being interfered with.

e360 is also vociferously defending its claim that Comcast is committing a denial of service attack on Comcast. The Comcast lawyers had a wonderful analogy for this claim in their motion.

By way of analogy, Plaintiff’s allegations can be compared to a telemarketer who calls a phone number and receives no answer. Instead of hanging up, however, the telemarketer stays on the line and allows the phone to ring and ring, then claims that the owner of the telephone number has damaged the telemarketer because he or she was unable to make any other calls during the time the phone continued to ring.

In this brief, e360 claims the equivalent of “any properly functioning telemarketing software will not hang up if the phone on the other end is still ringing.” They are really reaching on this one.

Continuing the reaching, e360 insists that Comcast is a state actor, because they deliver mail and the USPS is considered a state actor. More legalese trying to convince the court that somehow the policies Comcast posts mean Comcast has to deliver mail sent by e360, and that clause about how Comcast has no obligation to deliver email? Oh, that clause is not relevant to the case. Pay no attention to the man behind the curtain.

All in all, I think the brief is weak and does not compare to the compelling narrative from the Comcast lawyers. While I would like to see some of the issues litigated (what constitutes proof of opt-in), I am not seeing a very persuasive brief from e360. Given the quality of the work from the Comcast lawyers, I expect lots of case law and on point arguments in their reply.

0 Comments

e360 v. Comcast: part 3

Published
by
laura
19Mar
in Legal
.

A couple weeks ago I posted about e360 suing Comcast. The short version is that e360 filed suit against Comcast to force Comcast to accept e360’s email. Comcast responded with a motion for judgment on the proceedings. This motion asked the judge to rule on e360’s case without going through the process of discovery or depositions or all the normal wrangling associated with a legal case. Comcast appears to be saying to the judge even if everything e360 alleges is true, we have done nothing wrong.

The judge asked for each party to prepare full briefs on the motion. e360’s response is due tomorrow and the Comcast reply to that is due on March 27.

Comcast does not appear to be content with just having the case dismissed. Today they filed a counterclaim and third-party complaint. The counterclaim is against e360, the third-party complaint incorporates David Linhardt, Maverick Direct Marketing, Bargain Depot Enterprises, Northshore Hosting, Ravina Hosting, Northgate Internet Services and John Does 1-50. Docs are up over on SpamSuite.

Comcast states the nature of the action in 4 short paragraphs.

  1. Defendants operate a business designed to facilitate the e-mail marketing of products and services through, among other things, the sending of unwanted, unauthorized, unlawful and/or otherwise objectionable commercial e-mail messages (generally referred to as “spam”).
  2. Internet service providers (“ISPs”), such as Comcast, with the assistance of others, filter e-mail messages to prevent spam from reaching consumers. It is essential to the operation of its ISP services that Comcast utilize the tools at its disposal, tools sanctioned by federal and state law, to protect its subscribers from receiving spam. About 90% of all e-mail sent to Comcast’s subscribers is spam. Comcast filters about 500,000,000 spam e-mails per day.
  3. Spammers, on the other hand, try to mask their identities, the origins of their emails, and the nature of their services in order to deliver spam to consumers and to remain profitable. Defendants here utilize a variety of illegal and fraudulent activities to pursue their objectives, and have undertaken various efforts to obscure the nature, scope, and participants in their activities. Indeed, the filing of this action and pursuit of a preliminary injunction and expedited discovery are part of Defendants’ attempts to pressure and harass those who protect consumers from Defendants’ objectionable e-mails.
  4. Comcast brings this counterclaim and third-party complaint to prevent Defendants’ ongoing assault on Comcast’s business and to hold Defendant liable for its unlawful acts.

The complaint alleges a lot of bad behaviour on the part of e360 and the third party defendants, and having followed various bits of the e360 saga for the past few months, it appears the Comcast lawyers did their homework on this one. They mention the counterfeit goods marketed by Bargain Depot (1:06-cv-01169-MMM-JAG Maui Jim, Inc. v. Bargain Depot Enterprises, LLC - which Bargain Depot lost), the falsification of opt-in records, advertising “free” services that are not really free and more.

In paragraph 34, Comcast states that Dave Linhardt called Comcast and “fraudulently represented” that all the intended recipients had signed up to receive the mail. It will be interesting to watch this particular argument play out in court. I have no doubt that Comcast has e360 email sent to non-existent users, spamtraps, role accounts and/or employees that will swear under oath that they did not sign up for the mail. e360 will provide data that shows someone opted in that email address on some website at some time. At that point, the judge will have to decide who is telling the truth and who is providing correct data. This is complicated by the chance that anyone could have really entered the email address into a website. What responsibility do mailers have to verify that they are sending mail to people who asked for it and what steps do mailers need to take in order to protect themselves from bad data entered into websites?

In the next paragraph Comcast states that after the initial suit was filed, Comcast reached out to e360 in order to work through e360’s process and why the e360 mail is being filtered. “e360 refused the offer, asserting that it would learn how to circumvent Comcast’’s Filtering System through discovery.” To my non-legal eye this seems to me to be a sign of bad faith on e360’s part.

Comcast goes on to point out e360’s abuse of the legal process, from the suit against Spamhaus, through the multiple suits against individuals. They also mention the “IP Protection Service” sold by e360.

The IP Protection Service entails modifying the third-party marketers’ IP addresses to appear as if they are e360’s IP addresses, or providing the third-party internet marketers access to e360’s servers for use in sending mass e-mail marketing messages through e360’s servers that have been de-listed with Spamhaus pursuant to the Court Order. e360 describes how it plans to use the Court Order to mislead Spamhaus:

“As you know, the American Registry of Internet Numbers (ARIN) assigns all IP address in the U.S. ARIN maintains a registry of all IP addresses on www.arin.net which acts as a kind of phone book for the Internet. When Spamhaus investigates the originating IP address for an email message, they rely heavily on the information provided by ARIN. E360’s IP Identity Management Solution effectively modifies the ARIN listing for your existing ip addresses and points them to one of our legally protected entities. The result is immediate protection against Spamhaus listings as provided by the federal injunction. This solution protects against future listings, and also forces Spamhaus to remove any existing
SBL listings.” [Emphasis Supplied]

Attached as Exhibit B are marketing materials issued by e360 advertising the IP Protection Service.

43. Once the third-party e-mail marketer enrolls in the IP Protection Services, Defendants use the Court Order to request that Spamhaus de-list the third-party marketers’ IP addresses from the ROKSO and/or SBL lists on the basis that the third party is now an “affiliate” of e360 within the meaning of the Court Order.

There are 7 Counts in the filing.

Count 1: Violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) of 2003 – 15 U.S.C. § 7704(a)(1). Comcast alleges that mail sent to Comcast subscribers contained false or misleading information about the origin of the email. Comcast asks for statutory damages of $100 for each violation (numbered in the hundreds of thousands or millions) and aggravated damages.

Count 2: Violation of CAN-SPAM – 15 U.S.C. § 7704(a)(2). Comcast alleges that mail sent to Comcast subscribers contained false or misleading subject lines. Comcast asks for statutory damages of $25 for each violation and aggravated damages.

Count 3: Violation of Illinois Electronic Mail Act — 815 ILCS 511/10. Comcast alleges that mail sent to Comcast subscribers contained false or misleading subject lines. Comcast asks for statutory damages of $10 per email message or $25,000 a day.

Count 4: Violation of the Computer Fraud and Abuse Act – 18 U.S.C. § 1030(a)(5). Comcast alleges that the volume of mail sent by e360 significantly degraded the Comcast quality of service. Comcast states damages aggregate at least $5000 in 2007.

Count 5: Trespass to Chattels. Comcast alleges that e360 has intentionally accessed and used Comcast’s servers and networks for their own benefits. Additionally, when Comcast took action (blocking emails) to protect their network, e360 continued to send large volumes of email, thus depriving Comcast and its subscribers of legitimate use of the network and servers.

Count 6: Unjust enrichment. Comcast alleges that e360 has profited by spamming through Comcast’s network at Comcast’s expense and have been unjustly enriched. Comcast asks for disgorgement of all profits from the sending of unsolicited emails to Comcast subscribers.

Count 7: Abuse of process. Comcast states e360 knew that Comcast was protected under the Communications Decency Act when e360 filed the original lawsuit. And e360 knew that Comcast is not a state actor and not liable under the First Amendment. Comcast states the purpose of the lawsuit is to discover how to circumvent ISP filters and undermine the ability of 3rd parties, like Spamhaus, to provide reliable data to ISPs. Comcast also points to the misuse of the Court Order in the Spamhaus matter and repeated suits against people who identified e360 as a spammer as supporting evidence for e360’s abuse of process.

Comcast requests the following:

  1. A preliminary and permanent injunction enjoining Defendants, their officers, agents, servants, employees, attorneys, and any persons or entities in active concert or participation with any of them, from:
    1. directly or indirectly sending unsolicited or unauthorized commercial emails, including but not limited to any such e-mails that reference or use in any way Comcast’s property, computers, domains, servers, networks, or users;
    2. directly or indirectly circumventing Comcast’s Filtering System for the purposes of sending commercial e-mails to Comcast’s subscribers;
    3. directly or indirectly sending any commercial e-mail messages, whether or not lawful, unless and until each Defendant has certified to the Court andComcast, and confirmed the certification at periodic intervals, that it andall their affiliates and business partners comply with the best practices setforth by the Messaging Anti-Abuse Working Group (“MAAWG”) SenderBest Communications Practices, attached hereto as Exhibit D, or suchother practices as this Court may deem appropriate to order; and
    4. directly or indirectly profiting from any of the acts prohibited by paragraphs 1(a), (b) and (c).
  2. Within ten (10) days of entry of any injunctive order, Defendants be required to file and serve an affidavit detailing the form and manner in which each has complied with the terms of the injunction;
  3. An award of statutory, compensatory, and aggravated damages to Comcast;
  4. Disgorgement of the Defendants’ profits and imposition of a constructive trust on all moneys received and all profits generated by Defendants’ sprint pcs ringtones downloadfree phone ringtones verizon wirelessfree kyocera ringtonesfree mp3 ringtones converterfree get ringtonescaller download hotlink ringtonesdownload free kyocera ringtonescell cingular free phone ringtonesfree cingular music ringtonesericsson polyphonic ringtones sonymaker ringtones xingtonefree metro pcs phone ringtonesbollywood free latest ringtonesabsolutely free ringtones download,absolutely free ringtones,absolutely free ringtones sprint pcsno faxing payday loaninstant payday loanno fax payday advance loanpayday loan companycalgary loan payday,calgary payday loanfast loan online paydaybest payday loanbest payday loan company,company loan payday,new payday loan companycost loan low paydaypayday advance loan colorado,payday advance loan new york,payday advance loancash advance payday paycheck,payday cash advance oregon,payday cash advanceonline payday loan servicepayday loan cash advance loanday loan payday same,day loan no payday same teletrackonline payday loan instant approvalfax loan no no payday telecheck,absolutely fax loan no payday,fax loan paydaycanada loan manitoba payday winnipeg,canada loan payday,all payday loan in canada onlypayday loan canadapayday cash loanday loan payday quick same,cash day loan payday same,same day payday loanonline payday loan applicationadvance? cash loan online payday ?fee loan low paydayfax loan no online paydayquick payday loansavings account payday loanpayday payday loan cash advance loan,advance cash cash loan loan payday quick,advance cash loan paydayinterest free payday loan,payday first loan free,free loan paydayquick payday advance loan30 day payday loanadvance america payday loangeorgia loan payday,georgia in loan online paydayfast cash payday advanceone hour payday loansonic payday loan,loan payday sonicquick cash payday loan illegal activities;
  5. An award of Comcast’s attorneys’ fees and costs; and
  6. An award of such other and further relief as may be just or equitable.

Generally, I think that the Comcast legal team is determined to win this and are not messing around with the facts. The rumors about e360’s precarious financial situation make me wonder if Dave is going to be able to afford this legal wrangling or if he has found some angel investors with a lot of money to throw into the US court system.

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Affiliates: what is a company’s responsibility

Published
by
laura
17Mar
in Legal
.

Many of my clients come to me when they end up with delivery problems due to the actions of affiliates. These can either be listings in some of the URL blocklists (either public or private) or escalations of IP based listings. In many of the cases I have dealt with affiliates, the affiliates have sloppy mailing practices or are out and out spammers.

Recently the FTC settled with Cyberheat over their liability for the behaviour of their affiliates. In this settlement Cyberheat is required to monitor their affiliates as follows:

  • Contractually requiring the affiliate to identify any subaffiliates it intends to us
  • Providing each affiliate a copy of the Order
  • Obtaining from each affiliate an express agreement to comply with the Order and the CAN SPAM Act
  • Contractually requiring each affiliate that intends to use email marketing to provide Cyberheat, at least 7 days before the campaign, the email address from which the email will be sent, the subject line, the proposed dates the email will be sent, the email addresses to which the email will be sent, and a certification regarding how the addresses were obtained
  • At least 3 days prior to an email campaign being conducted, Cyberheat must review the campaign for compliance with the CAN SPAN Act and provide written acknowledge that it has reviewed the campaign and that it complies with the CAN SPAM Act, and
  • Requiring each consumers that signs up for Cyberheat service to identify the manner through which they heard of the service. If they heard of the service via email, Cyberheat must monitor the affiliate that sent the email for continued compliance with the CAN SPAM Act.

These conditions are very similar to the conditions I helped some clients establish when they ended up on the SBL due to the behaviour of their affiliates. We did set contractual limits on what the affiliates could do, and require they comply with an AUP. We also set out a vetting process to verify that the affiliate would not send spam. Questions all affiliates had to answer included:

  1. Company name, address, domain, opt-in policies
  2. Main website
  3. Outgoing mail IP(s)
  4. Domains used in email
  5. Where do they get their email addresses?

Each candidate must pass the at a minimum checks:

  • Check the opt-in policies as listed on the website.
  • Check mail IPs on spamhaus and other blacklists
  • Check rDNS on IPs
    • Is their reverse DNS set up
    • Is it reasonable
    • what is rDNS of nearby space
  • Check whois record
    • How new is the record
    • Is there valid contact information in the record?

Additionally, a unique address will be signed up at every affiliate.

One of the difficulties my client and I discovered while vetting affiliates is that many affiliate programs hide their mailing IPs and will refuse to reveal any information about where the mail comes from. This makes it difficult, if not impossible, to determine if they are associated with any reports of spam.

I have yet to find the silver bullet for determining the cleanliness of an affiliate program. I think it is clear, though, that the FTC expects companies to know who their affiliate mailers are and to not patronize affiliates who are sending spam.

Hat tip: Venkat

1 Comment

Yahoo, part 5…

Published
by
laura
14Mar
in Industry
.

… wherein I rename this blog “What change did Yahoo make today.” No, really, I like the guys at Yahoo a lot, but really, occasionally I would like to blog about something different!

Today’s change, actually yesterday’s, is that Yahoo has closed their beta FBL program to changes or additions. It is a beta program, this is not unexpected. They will be making changes based on the results of that program and will open it up sometime in the future.

Yahoo!’s announcement

Due to the success of our beta program, we are currently making changes to the application process for the Yahoo! Mail Complaint Feedback Loop program. As such, we are *not* processing new applications at this time. We do hope to re-launch an improved, more streamlined online process for interested participants soon. Please check our Postmaster Help pages often for updates in this regard.

What does this mean? It means there will be a Yahoo, part 6 post on this blog!

Happy Friday, everyone.

2 Comments