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Analyst: Firms must follow spirit of antispam law

Even if the forthcoming federal crackdown lacks real teeth, marketers need to get the message and start policing themselves.

For politicians, there is no easier legislative target than spammers -- with the possible exception of telemarketers.

Last week's 97-0 Senate vote in favor of an antispam bill is proof positive. With the House of Representatives still wrangling over the final points of the bill it will send to the president, it is time for marketers to start exercising some self-regulation before the government does it for them. And fast, according to Chris Selland, founder of Reservoir Partners, a CRM consultancy in Cambridge, Mass.

"It's a political issue," Selland said. "A lot of the argument is that an antispam law won't be effective. I agree, but that's not going to stop politicians from implementing it. Look at the wild popularity of the 'do not call' list."

There are a myriad of reasons that a "do not spam" list will not work, most of them technical, he said. For example, any such legislation will not be enforceable overseas, where much of today's spam originates, Selland said.

"All it's going to do is punish the people who are being ethical about [spam]," Selland said. "It's a little like the argument about gun control -- that if you outlaw guns only criminals will have guns. I don't know [that] there's a right answer."

It is clear that people do not want spam and that politicians are more than happy to accommodate them in an election year. Legitimate email marketers need to be proactive, Selland said, and that does not mean having the Direct Marketing Association suing to stop the law -- as it did with the "do not call" list.

One such action would be a "white list" of legitimate email marketers who agree to certain industry standards, Selland said. Organizations like the DMA could then work with ISPs to allow those members to send out email while refusing to deliver mail from those not on the list. Filing lawsuits is "just the road to futility" for the DMA, Selland said.

In response to the Senate vote last week, the DMA expressed support for policies that distinguish legitimate commercial email from spam, but the group expressed concern for a "do not email" registry.

"A 'do not email' list is not the silver bullet to stopping spam," H. Robert Weintzen, president and CEO of the DMA, said in a release. "Our members, and other legitimate marketers across the country, respect consumers' preferences and adhere to the pillars of responsible email. At the end of the day, a 'do not email' list would punish law-abiding small and midsized companies who are trying to break into the marketplace, while doing absolutely nothing to stop the most egregious perpetrators of spam."

Some sort of law is coming in the next year, Selland said, and reputable marketers are going to need to abide by it or risk getting fined.

A ruling last week by a California court proves that there can be some enforcement behind antispam laws. Because it was found to have violated California's 1998 antispam law, PW Marketing LLC of Los Angeles was fined $2 million, and its owners were banned for 10 years from owning or being part of any company that advertises over the Internet. Compounding their crime, the owners of PW Marketing were sending out emails on "how to spam."

A new, stricter law is scheduled to go into effect next year in California. It will hold companies liable for spam that advertises their products.

No matter the outcome of the federal law, or any possible court challenges, marketers need to start taking into account consumer demands, or risk being thrown out with the Viagra and pornography emails currently flooding in-boxes, Selland said.


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