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Legal filings this week

It has been one of those weeks here and there have been a couple legal things that have come up that I have not had the time to blog about.
One is a post over on Eric Goldman’s blog by Ethan Ackerman discussing the Jeremy Jaynes case. It is quite an info heavy post, but well worth a read.
In addition to not having the time to fully read Ethan’s post and understand the legal subtleties he is discussion, I have not quite had the time to blog about two e360 filings that showed up this week.
The first is a filing by Spamhaus’ lawyers asking for the judge to compel e360 to participate in the discovery process. If you remember e360 won a default judgment against Spamhaus for over $11M. Spamhaus filed an appeal and the Seventh Circuit Court upheld the judgment but vacated damages. Spamhaus and e360 were ordered to conduct discovery on the damages.
I would assume that e360 would be eager to demonstrate the amount of damages Spamhaus caused them, but it appears this is not the case. According to the filing e360 has been missing deadlines and even skipped a planned deposition. The exhibits show numerous email conversations between the lawyers, with e360’s lawyers making repeated promises to deliver, and then failing to follow through.
There are a couple statements in the filing that stood out. First, this paragraph which contains a statement that should have e360’s lawyers shaking in their shoes.

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Categories of email

The question came up on a mailing list about how senders classify email. Steve came up with the following list of email types from the recipient (not sender) perspective

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Forgery and spamware

Recently there has been a massive uptick in forgeries. I have been seeing hundreds of bounce back messages, peaking at more than 1000 in an hour. I have been talking about this with people who monitor large spamtrap feeds, large MTAs and spamfilters and it seems this is not an isolated experience. The consensus seems to be that there is new spamware out there which is using email addresses on the spam list as a From: address
The volume itself is annoying. Thousands of messages a day from “mailer-daemon” telling me that the mail I sent with the subject line “Get a longer tool” cannot be delivered to some random address some where. These are coming to at least 3 separate email addresses. One of them was given to Intuit back in 2001/2002 when I registered a copy of Quicken, and ended up leaked to loan spammers and is all over spam lists. The other two are addresses scraped from websites. Same spammer has them, same spammer is using them as part of his spam run.
Even more annoying than the volume, though, is the challenge/response emails. “Your email to jobobjimbo@example.com cannot be delivered until you click this link.” I have been adding every domain I can find that is using c/r to my filters, and just discarding the c/r emails so I do not have to deal with them. That is not my ideal solution, it does mean that if someone using c/r ever tries to contact me I will not see the challenge and our communications cannot happen.
Some people have recommended that the right way to deal with challenges from forged spam are actually to answer the challenges. As the reasoning goes, if someone using c/r is going to outsource their spam filtering to a victim of spam forgery, then they should expect that the “spam filter” may have a different opinion than they do. While I always sympathized with this viewpoint, I was not sure I would ever confirm spam forgeries. The sheer volume of c/r stuff I have received in the last few weeks has almost convinced me that people who use c/r deserve every bit of spam they get. If a c/r filter lets in spam, then perhaps they will reconsider their choice to spew challenges out to forged email addresses.
The amount of c/r spam I am getting as part of the forgery runs is decreasing, I think I have finally managed to block the primary sources. It does mean I will not be able to communicate with people who use c/r in the future, but I find this a small price to pay for not having to be an outsourced spam filter. I get enough of my own spam, I really do not want to have to deal with yours.

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Finding your relevancy

Ken Magill reported today that Responsys has unveiled a tool to measure the relevancy of email marketing programs. This tool is intended to help marketers implement the advice “be more relevant.”

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That's spammer speak

I’ve been hearing stories from other deliverability consultants and some ISP reps about what people are telling them. Some of them are jaw dropping examples of senders who are indistinguishable from spammers. Some of them are just examples of sender ignorance.
“We’re blocked at ISP-A, so we’re just going to stop mailing all our recipients at ISP-A.” Pure spammer speak. The speaker sees no value in any individual recipient, so instead of actually figuring out what about their mail is causing problems, they are going to drop 30% of their list. We talk a lot on this blog about relevancy and user experience. If a sender does not care about their email enough to invest a small amount of time into fixing a problem, then why should recipients care about the mail they are sending?
A better solution then just throwing away 30% of a list is to determine the underlying reasons for  delivery issues, and actually make adjustments to  address collection processes and  user experience. Build a sustainable, long term email marketing program that builds a loyal customer base.
“We have a new system to unsubscribe people immediately, but are concerned about implementing it due to database shrink.” First off, the law says that senders must stop mailing people that ask. Secondly, if people do not want email, they are not going to be an overall asset. They are likely to never purchase from the email, and they are very likely to hit the ‘this is spam’ button and lower the overall delivery rate of a list.
Let people unsubscribe. Users who do not want email from a sender are cruft. They lower the ROI for a list, they lower aggregate performance. Senders should not want unwilling or unhappy recipients on their list.
“We found out a lot of our addresses are at non-existent domains, so we want to correct the typos.” “Correcting” email addresses is an exercise in trying to read recipients minds. I seems intuitive that someone who typed yahooooo.com meant yahoo.com, or that hotmial.com meant hotmail.com, but there is no way to know for sure. There is also the possibility that the user is deliberately mistyping addresses to avoid getting mail from the sender. It could be that the user who mistyped their domain also mistyped their username. In any case, “fixing” the domain could result in a sender sending spam.
Data hygiene is critical, and any sender should be monitoring and checking the information input into their subscription forms. There are even services which offer real time monitoring of the data that is being entered into webforms. Once the data is in the database, though, senders should not arbitrarily change it.

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Comcast FBL open to the public

The Comcast FBL has been moved out of beta testing an into production. ISPs and senders can sign up for the FBL at http://feedback.comcast.net/
All of the applications are currently reviewed by hand, so there may be some delay as they deal with the launch rush. Please be patient. If you currently have a FBL through the beta program, you do not need to do anything, the FBL will continue.

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Email related blog communities

I have recently become aware of 2 new blog communities based around email marketing.
One is a feedburner community Email Marketing Expert
The other is Box of Meat
Enjoy.

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Signup forms and bad data

One thing I frequently mention, both here on the blog and with my clients, is the importance of setting recipient expectations during the signup process. Mark Brownlow posted yesterday about signup forms, and linked to a number of resources and blog posts discussing how to create user friendly and usable signup forms.
As a consumer, a signup process for an online-only experience that requires a postal address annoys and frustrates me to no end. Just recently I purchased a Nike + iPod sport kit. Part of the benefit to this, is free access to the Nike website, where I can see pretty graphs showing my pace, distance and time. When I went to go register, however, Nike asked me to give them a postal address. I know there are a lot of reasons they might want to do this, but, to my mind, they have no need to know my address and I am reluctant go give that info out. An attempt to register leaving those blanks empty was rejected. A blatantly fake street address (nowhere, nowhere, valid zipcode) did not inhibit my ability to sign up at the site.
Still, I find more and more sites are asking for more and more information about their site users. From a marketing perspective it is a no-brainer to ask for the information, at least in the short term. Over the longer term, asking for more and more information may result in more and more users avoiding websites or providing false data.
In the context of email addresses, many users already fill in random addresses into forms when they are required to give up addresses. This results in higher complaint rates, spamtrap hits and high bounce rates for the sender. Eventually, the sender ends up blocked or blacklisted, and they cannot figure out why because all of their addresses belong to their users. They have done everything right, so they think.
What they have not done is compensate for their users. Information collection is a critical part of the senders process, but some senders seem give little thought to data integrity or user reluctance to share data. This lack of thought can, and often does, result in poor email delivery.

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Social network sends spam

Yesterday we talked about social networks that harvest the address books of registered  users and send mail to all those addresses on behalf of their registered user. In the specific case, the registered user did not know that the network was going to send that mail and subsequently apologized to everyone.
That is not the only way social networks collect addresses. After I posted that, Steve mentioned to me that he had been receiving invitations from a different social network. In that case, the sender was unknown to Steve. It was random mail from a random person claiming that they knew each other and should network on this new website site.  After some investigation, Steve discovered that the person making the invitation was the founder of the website in question and there was no previous connection between them.
The founder of the social networking site was harvesting email addresses and sending out spam inviting people he did not know to join his site.
Social networking is making huge use of email. Many of my new clients are social networking sites having problems delivering mail. Like with most things, there are some good guys who really do respect their users and their privacy and personal information. There are also bad guys who will do anything they can to grow a site, including appropriating their users information and the information of all their users correspondents.
It is relatively early in the social networking product cycle. It remains to be seen how much of an impact the spammers and sloppier end will have. If too much spam gets through, the spam filters and ISPs will adapt and social networks will have to focus more on respecting users and potential users in order for their mail to get delivered.

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Address harvesting through social networks

The next killer ap on the Internet seems to be social networking. Everyone has a great idea for the next facebook or or myspace. All of these sites, though, have to find users. The site will fail if there are no users. One way to get new users is to ask all your current users to invite all their friends to join. This tends to lead to the marketing / product decision to insert functionality into the social networking site which allows current users to upload their address book and the site itself will send out invitations to all your friends and contacts.
This is not actually as great as an idea as it sounds, however. First, you end up with situations like what happened to me this past week.  On Wednesday I received the following email:

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