Nov. 26, 2000

DENVER JUDGE GIVES SPAM A CHANCE

If you love seeing your e-mail box filling up with messages from people you don't want to hear from, you'll have to love U.S. District Court Judge John Kane's decision to keep Denver-based Exactis.com out of an Internet black hole.

Exactis.com is an e-mail service business that sends messages some 500 million of them a month for its clients, which it calls "information businesses."

Nothing wrong with that, as long as the people getting the messages have asked for them. Many of us have subscribed to online newsletters or daily updates on some topic of interest.

But all of us have been subscribed unwillingly to a list we never asked to be on and can't get off. I've had to delete hundreds of messages from an account calling itself "datelineheaven," and I'm currently being deluged with messages from some credulous fool who believes psychics really do communicate with the dead.

The only acceptable practice is to add to an e-mail list only those people who have explicitly asked to be on it, a policy called "opt-in."

The opposite, "opt-out," presumes that it's okay to send you anything you haven't previously objected to.

It's like getting junk mail that arrives "postage due," only you have to pay for it before you throw it away.

Some of Exactis.com's clients are rather less than fastidious about creating and maintaining their e-mail lists, however, and the irritated recipients brought Exactis.com to the attention of the Mail Abuse Prevention System, a non-profit anti-spam group (mail-abuse.org) in Redwood, Calif.

MAPS maintains a database of Internet addresses that it believes send or relay spam. It's called the "Realtime Blackhole List," and Internet service providers who want to protect their networks and their customers from unsolicited bulk e-mail can configure their system to reject all e-mail from any address on the RBL.

This is entirely voluntary. Nobody forces an ISP to subscribe to the list (though the spam problem is so severe that an estimated 40 percent of ISPs do).

Those who do subscribe can tailor the list to accept messages selectively even from blackholed addresses; that was the outcome of another suit filed against MAPS by Harris Interactive, and subsequently dismissed at Harris' request.

MAPS and Exactis had been negotiating since April, and, according to MAPS, they had a deal "which would have prevented unsolicited bulk and commercial e-mail from being sent through Exactis' mail servers, as well as ensuring that addresses on Exactis' own mailing lists were fully verified."

But MAPS continued to get unwanted e-mail, and on Tuesday it sent 150 of Exactis' servers to the black hole. The company filed suit in U.S. District Court in Denver asking for a temporary restraining order, and Kane granted it.

He also imposed a gag order on MAPS, so I am relying on information available before the order was issued.

An RBL listing has an immediate and catastrophic impact on companies that send unwanted messages; that's not a bug, it's a feature. E-mail service businesses get paid for the number of messages they deliver, wanted or not. If the messages don't get through they lose money, and eventually clients.

Furthermore, the undelivered messages will bounce back, choking the sender's computers with their own junk. Poetic justice, that.

So it's true that an RBL listing has the potential for causing harm. But that's not the only necessary condition for a temporary restraining order and a preliminary injunction. The other is that the party seeking the injunction is likely to prevail when the case goes to trial.

That's unlikely. If MAPS has decided it will not accept mail from Exactis servers, it surely has a First Amendment right to inform others of that decision like a restaurant reviewer who tells readers, "I found a cockroach in my salad. Don't eat there."

Nobody is forced to follow the advice.

In its brief, Exactis accuses MAPS of wiretapping, extortion and racketeering, among other things. Wiretapping, under Colorado law, includes any actions which will obstruct or delay e-mail; if that broad interpretation stands, the legislature will have to modify the law. Otherwise parents could be charged with wiretapping for blocking triple-x rated messages addressed to their young children.

The longer the dispute continues, the more complaints MAPS will receive to justify an RBL listing for Exactis; the more publicity there is, the more ISPs will take action on their own to block messages from Exactis.

Eventually, they'll have to clean up their mailing lists. Why not now

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