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28 July 2003

Staggering Statistics...

  • estimates that a majority of Internet users receive between 11 and 100 spam e-mails per day.

  • In March, anti-spam company Brightmail ( reported a 4 percent monthly increase in spam, a 100 percent jump from the same month a year before.

  • Brightmail also estimates that by September, half of all e-mail on the Internet will be spam.

Sifting important e-mails out of the daily flood of spam is a hassle that continues to worsen. And while the commonly used definition for spam is "unsolicited bulk e-mail," that description overlooks the fact that a lot of spam contains offensive material and that much of it seeks to deceive readers with false or fraudulent information.

Millions of e-mail users worldwide, including legislators, are fed up. Just this month the United Kingdom hosted its All Party Internet Group's first Spam Summit, where legislators and media and technology experts gathered to discuss options for defeating the problem. Brightmail's CEO Enrique Salem suggested several methods, among them: the use of counteractive technology by ISPs and corporations, increased spam education, ethical guidelines for legitimate direct marketers and, of course, legislation to regulate spam and to provide judicial and financial penalties for spammers.

Anti-Spam Policy

Almost everywhere lawmakers are discussing combative steps. In the United States, congressional committees have considered several bills that would restrict spam. So far the most successful has been the Burns-Wyden Can-Spam Act, which would make false subject lines illegal. That means spammers wouldn't be able to trick you into reading their ads with headlines like, "Hey, why haven't you called me back?"

" We don't think that any vehicle of legislation by itself will kill spam."
- Louis Mastria
The Direct Marketing Association

Spam sent from false e-mail addresses to which users can't reply would be made illegal too. Hypothetically, these restrictions would eliminate the most heinous spam: pornography, bogus product ads, fraudulent opportunity schemes, etc. Prohibiting these things, however, does not mean they will go away. To have any effect, the law will need to include punishments that are severe and enforceable. The law also assumes that proper officials will be able to catch the hordes of spammers, which may not be an easy task, especially if they operate from outside the U.S.

The U.S. Can-Spam Act would also regulate legitimate marketing e-mail from established and reputable businesses that advertise honest information while providing valid return addresses. All such ads would be required to contain an easily accessible opt-out mechanism so that users can request to be removed from the mailing list.

The Direct Marketing Association supports the Can-Spam Act as a means of curbing the growth of spam.

"We don't think that any vehicle of legislation by itself will kill spam, so that's not the only thing we're doing," said Louis Mastria, a spokesman for the association. We are also working with federal law enforcement officials to see if we can set up an industry/law-enforcement-official group of some sort that would essentially track down spammers and deliver them to law enforcement. We are also working with some ISPs and e-mail service providers on a concept where legitimate marketers would sign up to certain practices, and if they violate these then their e-mail doesn’t go through. As a combination of things, legislation plus these two others would make a big dent on the growth of spam."

While the United States considers an opt-out solution, the European Parliament is considering opt-in legislation. Unlike the proposed U.S. system, where individuals would have to reply before being removed from mailing lists, European residents would never receive e-mail from a company unless they had first registered to be on a mailing list. The e-mail sender must not hide its identity and must provide valid contact details.

But many speculate that unless governments cooperate with one another, most laws will have hardly any effect at all. For example, any E.U. directive could only control spam originating from the E.U. spammers operating outside of E.U. jurisdiction would not be subject to the same laws and could continue to spam European recipients without reprimand.

Unfortunately, most of Europe's spam originates from other continents. And according to Brightmail, the problem is becoming increasingly more offensive, with one-fifth of all spam containing pornographic content.

Spamhaus (, a Web site that tracks and lists the Internet's worst spam gangs, estimates that 90 percent of all spam received in the United States and European Union originates from 200 spammers, mostly based in Florida. E.U. legislators can do nothing to protect their citizens from these spammers.

"Junk e-mail is never going to go away."
- Jerry Ryerson

Skeptics even argue that the amount of spam is about to explode everywhere, ironically due to the U.S. Can-Spam Act. While marketers in the European Union will only be able to send bulk unsolicited e-mails to readers who have requested to be placed on mailing lists, marketers in the States will be given a vivid green light to send bulk e-mail to as many e-mail addresses as they can attain, as long as the addresses do not appear on their "do not spam" list.

So the argument follows that spammers should rejoice. They would no longer have to hide their identities. They just would just need to add a valid return address and an opt-out mechanism, and all of their spam would become legal.

The Effects of Anti-Spam Policy

To understand what sort of effects proposed legislation might have, let's examine the techniques of a few different marketing companies.

Datalode is a marketing company with clients like Toshiba, Hewlett Packard and Orbitz. The group's founder, Gaylyn DeMartini, says most legitimate marketers obtain consumer e-mail addresses through opt-in methods by which users knowingly register to receive information. "None of our clients--and I can only speak for our clients--actually purchase third-party lists because of the trials and tribulations of purchasing those lists: How do you guarantee they are double opt-in, etc," DeMartini explained.

And once a customer has opted in, every single communication from Datalode supplies very clear ways to not only opt out, but also to change preferences.

"More sophisticated marketers segment their customers so you don't have just a blanket opt-in," DeMartini added.

Customers can choose to receive only certain kinds of mailings, like coupons or product updates.

Companies like Datalode and clients already follow the requirements that the U.S. Congress would like to mandate. They even honor the European Union's stricter opt-in code.

BetonSports Gaming Networks, one of the world's largest and oldest online bookmakers, also requires that individuals register before being added to its e-mailing list. In every e-mail, BetonSports includes a reply address, an honest subject line, and an opt-out mechanism. They don't purchase e-mailing lists.

David Carruthers, CEO of BetonSports, is optimistic about legislation. "The ability to prosecute will largely influence how effective the laws will be," he explained.

He offered the following analogy: Speed limits post a law, stating that vehicles may not travel over a given velocity. If violators are caught and fined then there is a deterrence from speeding. But if not, then travelers may take the opportunity to speed. Similarly, if spam regulation is enforced, then spammers may be reluctant to send so much spam. But if it is not enforced, then the trend is not likely to lessen.

Members of the Direct Marketing Association must adhere to a set of e-mail guidelines as a condition of membership. DMA members must not forge header information, must give an honest subject line, must include the physical street address of their business and must include opt-out mechanisms that work.

Mastria says the DMA takes these procedures very seriously, and violators are kicked out. The DMA also tells its marketers that they should not be using e-mail harvesters or using dictionary attacks. Its marketers are, however, permitted to purchase mailing lists.

The High Road or the Low Road?

Netsite is a marketer specializing in marketing for the online gaming industry. It does so in the ethical way (by collecting addresses through opt-in methods), but it spams too. It all depends upon what the client prefers and how much money it is willing to spend.

Obtaining an opt-in list is too expensive to be a practical approach to advertising for a lot of companies. While Datalode clients and members of the DMA are firmly established and able to obtain mailing lists fairly easily, a company trying to break into an industry like I-gaming will have a very difficult time assembling an op-in list.

They could buy a list from a company who has compiled the addresses of gamers who are interested in information about I-gaming. But according to Netsite's affiliate marketing director, Jerry Ryerson, "The ethical way is opt-in lists only, which usually if you buy on the Internet are not real. They are usually just harvested e-mail addresses through an e-mail harvester. And people just sell them as lists. There are some legitimate lists out there, but I believe the average for a real opt-in list is about four dollars per e-mail."

That's steep, but Ryerson says the price is definitely worth it because "Those are real gamblers. They really will come and they really will play."

So how do you market a product if you don't have the means to acquire an opt-in list and don't have the money to buy a list that may not even be authentic? You spam.

"E-mail has always been effective. Ryerson said. "People have made millions off of junk e-mail."

Not only is spamming cheap and easy, but chances are you won't be caught.

"You can mask an e-mail--it's not that hard to do--so that it is untraceable, unless you're the FBI," Ryerson explained. "No ISP is going to trace you down and shut you off."

When asked if legislation is going to affect Netsite's marketing strategies, Ryerson said, "Laws will have no effect on the way we do business. Junk e-mail is never going to go away, just like junk mail in your mailbox. People are always going to do it. There's a guy in Australia who runs a site called He basically teaches anyone who wants to learn how to do it and he publishes open relay lists of about 5,000 open relays per day for anyone who wants to spam."

Legislation will not change the fact that spam is a cheap and somewhat effective means to distribute information. And as it remains difficult to track, spammers remain confident that they can't be stopped. But even if U.S. and E.U. authorities were to prosecute spammers through strict legislation, the spammers could always move off-shore and continue to spam without redress.

Now What?

Marketers of both the opt-in sort and the spamming sort believe that all proposed legislation has no bite and will in no way affect the way anyone does business. The laws, they argue, can do little more than establish an etiquette that cannot be policed. It looks as though Brightmail's forecast that half of all e-mail will be spam by September will prove true.

"Spammers are actually taking [e-mail] away from legitimate marketers."
- Gaylyn DeMartini

"There is no enforcement, no way to really stop the spammers, which then hinders the legitimate marketers from using this medium," Datalode's DeMartini explained. "E-mail is a very low-cost way for enterprises to talk to their consumers, but spammers are actually taking that medium away from legitimate marketers." A lot of her clients' mailings, she said, are treated as spam--unread, deleted and often caught by filters.

"Legitimate marketers are moving to new technology that bypasses the e-mail channel and is a direct to the desktop channel," DeMartini said.

Datalode, for example, now uses its RealConnect software, which provides clients with permission-based, private, and actionable, one-to-one customer communications. Rather than receiving e-mail, consumers receive information from a software messaging program.

"Datalode developed the technology that actually sits on the consumer's desktop and allows the marketer to communicate with him in a one-to-one relationship," DeMartini explained. "The consumer completely owns the channel, meaning at any time he can uninstall. The program is a little icon in your sys-tray, and when there is a message for you it blinks and then you can click on it and get your messages. Since this channel is over a private port, it doesn't get blocked by filters and we don't need an e-mail address or personal information to be able to give a personal message back to the customer."

Orbitz has recently deployed the technology and has had a successful 40 percent click-thru rate.

As for spammers, there's no reason to believe that they are going to stop. Some groups, like the DMA and BetonSports believe that laws can suppress the problem, if only little. Still others, like Spamhaus, argue that the legislation is going to cause as an eruption.

The most poignant fact of the matter is that spamming is a global problem, and nothing short of a global policy will be an effective solution. In this sense, the situation is analogous to that of the I-gaming world. A nation can restrict gaming, but operators can relocate to other districts to operate. Similarly, a nation can restrict spamming, but spammers can relocate to another district from where they can bombard the world with junk e-mail.

Subject: WOW! ELIMINATE SPAM AND INCREASE YOUR... is republished from
Bradley Vallerius

Bradley P. Vallerius, JD manages For the Bettor Good, a comprehensive resource for information related to Internet gaming policy in the U.S. federal and state governments. For the Bettor Good provides official government documents, jurisdiction updates, policy analysis, and many other helpful research materials.

Bradley has been researching and writing about the business and law of internet gaming since 2003. His work has covered all aspects of the industry, including technology, finance, advertising, taxation, poker, betting exchanges, and laws and regulations around the world.

Bradley Vallerius Websites:
Bradley Vallerius
Bradley P. Vallerius, JD manages For the Bettor Good, a comprehensive resource for information related to Internet gaming policy in the U.S. federal and state governments. For the Bettor Good provides official government documents, jurisdiction updates, policy analysis, and many other helpful research materials.

Bradley has been researching and writing about the business and law of internet gaming since 2003. His work has covered all aspects of the industry, including technology, finance, advertising, taxation, poker, betting exchanges, and laws and regulations around the world.

Bradley Vallerius Websites: