It's not illegal to block mail

My post “We’re going to party like it’s 1996” is still getting a lot of comments from people. Based on the comments, either people aren’t reading or my premise wasn’t clear.
Back in 1996 the first lawsuits were brought against ISPs to stop ISPs from blocking email. These suits were failures. Since that time, other senders have attempted to sue ISPs and lost. Laws have been written protecting the rights of the ISPs to block content they deem to be harmful.
Dela says that he was just attempting to open up a conversation, but I don’t see what he thinks the  conversation is. That ISPs shouldn’t block mail their customers want? Sure, OK. We’re agreed on that. Now, define what mail recipients want. I want what mail I want, not what someone else decides I might want.
Marketers need to get over the belief that they own end users mailboxes and that they have some right to send mail to people. You don’t.
When marketers actually start sending wanted mail, to people who actually subscribe – not just make a purchase, or register online or happen to have an easily discoverable email address – then perhaps marketers will have some standing to claim they are being treated illegally. Until and unless that happens, the ISPs are well within their rights to block mail that their users don’t want.

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Email is not direct mail

Had an interesting talk with a colleague at a BBQ this weekend. He was at a large ISP and then moved on to do delivery at a large email marketing company. This marketing company was started by a very successful direct (snail mail) marketer. The CEO believed totally in testing and they measured everything. They knew what colors provoked a better response and which fonts were better received by recipients.
But this wasn’t always enough. They had some spotty delivery and my friend was hired to try and solve the delivery problems. He had some luck and did fix a number of things, but there was a deeper issue he couldn’t address: that email is not direct mail. The types of testing done is the type of testing for direct mail. They were so focused on getting the best response to a particular offer they refused to consider tweaking an offer from their “proven ideal” to stop triggering content filters at some large ISPs. So their ideal offers would sometimes end up in the inbox and sometimes in the bulk folder and sometimes just disappear.
With direct mail, the USPS is required by law to deliver mail to the addressee. Not only that there are a lot of barriers put up to prevent (or discourage) recipients to opt-out of receiving direct mail. This isn’t the case in email. Not only is their no requirement for an ISP to deliver email to recipients, there is actually a law that says that recipients must be able to opt-out from receiving future emails.
Direct marketers are used to having a lot of freedom and control over their mail. They can buy and sell address lists and send almost anything they want without having anyone tell them they can’t. That mindset translates badly into the email space where the ISPs and the recipients have a lot of control over their incoming email. It means that senders with the absolute perfect test copy see delivery problems because their perfect copy looks just like something a spammer would do and gets caught in content filters. It means they come into email and try to buy a list and discover that while it may be financially viable, they have to deal with angry upstreams, blocks at recipient ISPs and sometimes a Spamhaus listing.
Email isn’t the same as direct mail and attempting to map direct mail techniques onto email usually doesn’t work.

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We're gonna party like it's 1996!

Over on deliverability.com Dela Quist has a long blog post up talking about how changes to Hotmail and Gmail’s priority inbox are a class action suit waiting to happen.
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:

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Spamtraps

There is a lot of mythology surrounding spamtraps, what they are, what they mean, how they’re used and how they get on lists.
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.

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