Comments on Holomaxx post

I’m putting together a longer analysis of the Holomaxx case that will look at the claims against the various defendants. There’s some deep mis-understanding of how various things works (hint: wiretapping? not so much).
There was one comment from “The Other Barry” about complaints that I think bears highlighting.

Silly people.  High complaints means filters need to be more aggressive.   “Not Spam” reports means the filters need to be less aggressive.  Low complaints means the filters are accurate.

The Other Barry is someone who has real world experience managing filtering for a large ISP.
In other comments, Steve White is excited to see ISP filtering come under judicial scrutiny. I’m not sure why, there is plenty of case law around filters already. There’s even US law stating ISPs can filter. But, hey, I’m sure some lawsuit from a company no one has ever heard of before will be sufficient to turn over 10 years of precedence.

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Blocking of ESPs

There’s been quite a bit of discussion on my post about upcoming changes that ESPs will be facing in the future. One thing some people read into the post is the idea that ISPs will be blocking ESPs wholesale without any regard for the quality of the mail from that company.
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.

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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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The myth of the low complaint rate

I have been reading the complaints filed by Holomaxx and will have some analysis and information about them probably Monday or Tuesday next week. I’ve been keeping an eye on the press and something that Ken Magill said caught my eye.

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