How To Prevent Being Lynched By Heavy Handed Spam Laws

California's new heavy handed spam law, slated to take
effect on 1 January 2004, not only provides stiff fines PER
SPAM EMAIL sent. It also opens the doors wide for civil
litigation against a spammer, and gross amounts of cash
recovery for "damages" done to the recipient. In a society
that is already embroiled in lawsuit frenzy, this law
appears to be a ticket to instant riches for any California
resident that owns an email account.

The term "spam" of course, refers to unwanted commercial
e-mail that clogs millions of computer mailboxes every day.
The Internet culture's current mindset toward spam is so
near to reaching critical mass, it's akin to that of a
rabid and out of control lynch mob in old Tombstone - to
put it succinctly, "shucks, let's hang somebody."

While 30 or so states in the US now have anti-spam laws on
the books, most of them are difficult to enforce against
real spammers (the ones who send multi-millions of emails
at a whack, hawking this week's special snake oil.) Those
people often are located outside US borders, and are about
as easy to track down as a ghost.

It's my prognostication that few if any real spammers will
be lynched. The people who are most likely to be harmed are
legitimate businesses who participate openly in electronic
marketing, conducting their affairs above board with real
addresses and real phone numbers.

Small emarketers who derive part or all of their income
from email marketing, and have worked to develop their own
opt-in emailing list, appear to be the ones who are most
vulnerable to aggressive anti-spam laws.

The fact is this: Sooner or later, some list member will
"forget" that s/he opted-in, and will inevitably scream SPAM
at the top of their lungs. With the prospect for major
remuneration under the California law, there undoubtedly
will be those who suddenly contract a case of chronic
"opt-in amnesia." Managing the most valid opt-in emailing
list in the Universe is about to become even more taxing.

What To Do?

1. - Develop an iron-clad opt-in agreement that the new
subscriber must read and electronically agree to (via a
radio button, checkbox, etc.) before s/he is presented with
your opt-in form.

2. - Rigorously use a double opt-in subscription process,
where the first message the new subscriber receives will
require them to "confirm" the voluntary status of their
opt-in action. It's likely that this process will reduce
somewhat the number of new subscribers who make it all the
way to your opt-in list. Still, you'll wind up with a
higher quality list, containing subscribers who are serious
about reading your emails.

3. - Email any existing lists you have, explaining that you
are cleaning your lists, and asking those subscribers to
re-subscribe under your new policy. (Offer them something
good in return for their trouble.) You may lose some
subscribers, but those are probably the ones who never paid
attention to your mailings to begin with, and are most
likely to suddenly contract "amnesia."

4. - Retain electronic confirmations of all opt-in actions.
It would be wise to save those records externally to disk
on a daily basis.

5. - Provide an automated removal link in all emails sent.
A "reply to this email for removal" or "email this address
for removal" statement may not be sufficient in the near
future.

7. - Sign all messages you send, top and bottom, with your
full name and email address. Keeping your name in front of
your subscribers will greatly improve their ability to
recall their voluntary opt-in action.

8. - Be sure your email subject line relates directly to
the context of your message body. This is a prominent
clause in most current spam laws.

9. - Use only a valid and working return address for any
email sent. The recipient must be able to reach you (or a
member of your staff) by clicking the reply button to any
email received.

While I don't appreciate being spammed, I've also learned
to quietly use the technology available to me, ie. email
filters and delete buttons. Still, it won't surprise me in
the least to soon hear of some guy who has filed a million
dollar lawsuit because he contracted carpal tunnel syndrome
in his "delete" finger.

Blind and uninformed legislation appears to be laying a
foundation for just such a frivolous boondoggle, as slick
legislators continue to jump on the bandwagon, "taking
action" on popular social issues as a self-serving exercise
in ensuring their own re-elections.

What I fear most however, is a terminally diseased social
consciousness that refuses to take individual
responsibility, while expecting big government to be a
panacea for all ills, no matter how small or insignificant.