All I can say is that it’s all been tried before. Cyberpromotions v. AOL started the ball rolling when they tried to use the First Amendment to force AOL to accept their unsolicited email. The courts said No.

Time goes on and things change. No one argues Sanford wasn’t spamming, he even admitted as much in his court documents. He was attempting to force AOL to accept his unsolicited commercial email for their users. Dela’s arguments center around solicited mail, though.

Do I really think that minor difference in terminology going to change things?

No.

First off “solicited” has a very squishy meaning when looking at any company, particularly large national brands. “We bought a list” and “This person made a purchase from us” are more common than any email marketer wants to admit to. Buying, selling and assuming permission are par for the course in the “legitimate” email marketing world. Just because the marketer tells me that I solicited their email does not actually mean I solicited their email.

Secondly, email marketers don’t get to dictate what recipients do and do not want. Do ISPs occasionally make boneheaded filtering decisions? I’d be a fool to say no. But more often than not when an ISP blocks your mail or filters it into the bulk folder they are doing it because the recipients don’t want that mail and don’t care that it’s in the bulk folder. Sorry, much of the incredibly important marketing mail isn’t actually that important to the recipient.

Dela mentions things like bank statements and bills. Does he really think that recipients are too stupid to add the from address to their address books? Or create specific filters so they can get the mail they want? People do this regularly and if they really want mail they have the tools, provided by the ISP, to make the mail they want get to where they want it.

Finally, there is this little law that protects ISPs. 47 USC 230 states:

(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).

There is existing case law that states that spam blocking falls is protected under the CDA, including e360Insight, LLC v. Comcast.

I’m sure if the ISPs start blocking mail users actually want, that the users will actually point this out and the ISPs will be forced to change what they’re doing. A class action lawsuit by a bunch of marketers who are annoyed their “VITAL MARKETING MESSAGES” aren’t being forced into the inboxes of unwilling recipients doesn’t seem to meet that standard, though.

Really, Marketers, is there any part of my mailbox you don’t want to control?

The blog post ends with a question:

For those readers that know Gmail uses Spamhaus, I’d love to hear why Gmail couldn’t be transparent about its use.

I tried to post a comment, but it seems to have been eaten and never showed up on the post.

I don’t think this has anything to do with Gmail attempting to hide their use of outside blocklists. Rather, their technology is simply better suited to accepting and filtering after the SMTP transaction. Setting up a MTA to reject with different bounce codes for different reasons and notifying the sender of why can be a challenge for some.

Gmail’s philosophy is to accept all mail they can then filter it at the mailbox level. This philosophy drives both technology and system architecture. Trying to shoehorn in a different kind of filtering may be difficult or impossible without major changes. Then there’s the issue of maintaining a filter that is non-standard for the business. It makes perfect sense that Gmail sticks with their philosophy and filters mail from a PBL listed host.

Every mailserver admin, whether managing a MTA for a corporation, an ISP or themselves inevitably looks at the question of false positives and false negatives. Some are more sensitive to false negatives and would rather block real mail than have to wade through a mailbox full of spam. Others are more sensitive to false positives and would rather deal with unfiltered spam than risk losing mail.

At the ISPs, many of these decisions aren’t made by one person, but the decisions are driven by the business philosophy, requirements and technology. The different consumer ISPs have different philosophies and these show in their spamfiltering.

Gmail, for instance, has a lot of faith in their ability to sort, classify and rank text. This is, after all, what Google does. Therefore, they accept most of the email delivered to Gmail users and then sort after the fact. This fits their technology, their available resources and their business philosophy. They leave as much filtering at the enduser level as they can.

Yahoo, on the other hand, chooses to filter mail at the MTA. While their spamfoldering algorithms are good, they don’t want to waste CPU and filtering effort on mail that they think may be spam. So, they choose to block heavily at the edge, going so far as to rate limit senders that they don’t know about the mail. Endusers are protected from malicious mail and senders have the ability to retry mail until it is accepted.

The same types of entries could be written about Hotmail or AOL. They could even be written about the various spam filter vendors and blocklists. Every company has their own way of doing things and their way reflects their underlying business philosophy.

Spamtraps are very simply unused addresses that receive spam. They come from a number of places, but the most common spamtraps can be classified in a few ways.

• Addresses that used to belong to someone and subsequently abandoned. This is where a lot of spamtraps at major ISPs come from.
• Addresses that were never assigned to anyone, but they just started receiving spam one day. These are frequently used to drive filtering.
• Addresses that were created and put on websites to track harvesters and web scrapers.  These addresses are frequently used to drive filters and track spammers.

Addresses that belonged to someone and were abandoned are usually “turned off” for a period of time between abandonment and re-purposing as a spam trap. They may return a 550 “user unknown” to any sender, or in some cases the entire domain will have no working mailserver. There are no hard and fast rules for how long the addresses are left unused, but most professionals leave them off for at least a year.

Addresses that were never assigned to anyone are not as common as they used to be. It used to be that some small or mid-size domain owners would turn on their SMTP server to accept all email to any address at that domain, existing or not. Mail to addresses that were not associated with a user would be stored. As the volumes of random mail increased, the spamtraps were used to drive filtering and blocking decisions. This is not as common now because the sheer volume of spam can create bandwidth and storage problems for domain owners.

Addresses that were seeded on websites, or on Usenet, are used for a number of purposes. These addresses often wind up on lists because someone has purchased addresses.

Spamtraps on a mailing list or in a database is a sign that there is some problem with the address acquisition process. As a result, the solution to spamtraps on a list is never just remove the available spamtraps. Instead, you need to figure out what broke and correct the underlying issues.

The idea that ESPs are at risk for blocking simply because they are ESPs has been floating around the industry based on comments by an employee at a spam filter vendor at a recent industry conference.

I talked to the company to get some clarification on what that spam filtering company is doing and hopefully to calm some of the concerns that people have.

First off, and probably most important, is that the spam filtering company in question primarily targets their service to enterprises. Filtering is an important part of this service, but it also handles email archiving, URL filtering and employee monitoring. The target market for the company is very different than the ISP market.

The ISPs are not talking about blocking indiscriminately, they are talking about blocking based on bad behavior.

Secondly, this option was driven by customer request. The customers of the spam filtering appliance were complaining about “legitimate” mail from various ESPs. Despite being reasonable targeted the mail was unrequested by the recipient. While ESPs use FBLs and other sources of complaints to clean complainers off rented or epended lists at ISPs, the option is not available for mail sent to corporations. Enterprises don’t, nor should they have to, create and support FBLs. Nor should employees be expected to unsubscribe from mail they never requested.

This option is the direct result of ESPs allowing customers to send spam.

Thirdly, this option is offered to those customers who ask for it. It is not done automatically for everyone. The option is also configurable down to the end user.

While I haven’t seen the options, nor which ESPs are affected, I expect that the ones on the list are the ones that the filtering vendor receives complaints about. If you are not allowing your customers to send spam, and are stopping them from buying lists or epending, then you probably have not come to the attention of the filtering company and are not on the list of ESPs to block.

As a recipient I can

• report your email as spam
• forward your email to another account on another mail system
• file your email in a mailbox I never read
• block all your images
• delete your email before it ever hits my mailbox
• forward your email to public or private blocklists
• fold, spindle or mutilate your email
• forward your email to friends
• blog about your email
• purchase something from that email
• visit your website and purchase something else
• reply to you

Some of these things are going to hurt your reputation as a sender. And there’s nothing you can do about it. You can’t make a recipient accept your email. You can’t make a recipient ISP accept your email.

What you, as a sender, can do is send mail that your recipients want to read. Send mail that they expect, even anticipate. For instance, it’s now noon on Tuesday, I know I’m going to get Ken Magill’s newsletter in the next 2 hours. Then I will read it, chat about it with some other delivery folks and possibly comment on his blog. I may even get inspired and blog about something he wrote.

Influence and inspire your recipients. Send them mail they want, don’t just send mail they tolerate. Because they don’t have to just tolerate your email. They can react in many ways, some of them positive, some of them negative.

Senders need to remember they only control one end of delivery, but they can influence the whole stream.

The short answer is: Don’t do it if at all possible. Talking to ISP reps generally isn’t going to magically improve your reptuation.  There is no place in the reputation systems where delivery can be modified because the delivery specialist knows or is liked by the postmaster at an ISP.

With my clients, I work through delivery issues and can solve 80 – 90% of the issues without ever having to contact anyone at the ISPs. 90% of the remaining issues can be handled using the publicly available contacts and websites provided by the ISPs.

In the remaining cases, the “secret” to getting useful and prompt replies is to:

1. *Briefly* describe the issue. The folks handling senders on the ISP side are dealing with queues that have tens or hundreds of emails in them. The easier you make your ticket to handle the better.
2. Provide all the information they need. At the bare minimum include the sending IPs, any domains in the rejected email and full copies of the rejection message. Pull this information out in a way that someone skimming the message can easily pick out.
3. Ask clear questions. Don’t ramble on for 4 paragraphs talking about your business and meandering around the issue. Say: I don’t know why we’re getting this, what are you seeing? or I have made these changes and would like my reputation reset so we can create a new one. Or my mail is being bulk foldered and I can’t fix it, what are you seeing causing our reputation scores to be so low?
4. Don’t waste time providing all the details of your business model. Really. Everyone tries to do it, and your business model isn’t usually relevant to your reputation. “Let me tell you about my business model…” is a complete cliche and causes massive amounts of eye rolling among ISP reps. If you feel there is something relevant (this is confirmation email, we’re only mailing registered users, or similar) then feel free to include that. But the full details of your business model aren’t going to help, and may hurt. The ISPs care about are what your stats and numbers look like.
5. Do (briefly!) describe what steps you have taken (and how long you have tried them) to resolve the issue yourself. The bigger ISPs are getting very good at providing feedback to senders through FBLs, block messages and postmaster websites. Show them that you respect their time and have attempted to solve your problem without contacting them.
6. Give them time (at least 24 hours) before following up. One of my good friends handles the postmaster desk at a major ISP and one of her biggest annoyances is someone who opens a ticket, sends her a personal email and then IMs her all within 20 minutes. It does not make her deal with your issue any faster, I can promise you that.
7. Provide IP addresses, domains, any bounce messages you’re getting from the ISP. This is critical. Provide all the information the ISP needs. I know I mentioned this above, but it seems to need repeating as there are a lot of emails to the ISPs that never provide the IP addresses or any relevant information, which wastes time.
8. Go to the appropriate person. Calling your best friend the VP of whatever actually slows down handling of issues more often than not. It also results in overhead that no one really wants to deal with (placating managers outside your management chain is a pain and takes a lot of time). Finally, it will not endear you to the folks handling the day-to-day filtering decisions which will make future issues more difficult to deal with.
9. When you get an answer, take the information provided and make changes. Spending 3 days arguing back and forth about how they’re wrong while doing nothing to actually change your mail practices doesn’t fix anything. If you have proof that their data is wrong, provide it and why you think it is wrong. Sometimes you may be right but you’ll need to explain it clearly and provide the data you have. Sometimes you won’t and you’ll need to accept that, too.
10. SAY THANK YOU! You asked for help or answers, you got the time and attention of an ISP rep, say thank you for that. Even if it’s not what you wanted to hear, the person on the other end still took time to answer you.

The biggest secret can be summed up as: act as if you value the time of the person on the other end of the ticket / email / IM more than you value your own. Spend an extra 20 minutes to collect the information they’re going to need. Edit that email to make it short and sweet, paragraph upon paragraph of text explaining your business model will not make the ISP person sit up and take notice. List what you’ve done and changed and ask for what they are seeing that is causing your delivery problems. Often if you’ve made changes and they see recent improvements they will make adjustments for you, but this is because it’s clear you’ve taken steps to mitigate things all on your own.