As you hear words like "Hotmail" and "AOL", you may be tempted to think this doesn't affect you if you've outgrown those companies, but I think that's a mistake. First of all, if you think you might ever run a business that publishes an e-mail newsletter, you'll have to worry that your mail might be blocked unless you pay to unblock it. Second, even if you're only a subscriber to a company's newsletter and you're not worried about filters on your e-mail address, the company publishing the newsletter has to spend time and resources getting their mails unblocked that they send to other people, time that could be otherwise spent improving their services. Third, even if you're not on the Internet at all, in a real sense it affects the kind of world we all live in, if the wealthy are able to communicate with their listeners more easily than everyone else (that gap has always existed, but the Internet narrowed it, and then unblocking-mail fees widened it a little). If the Republican National Committee can get their mail out and MoveOn.org can't, then that could influence elections, and could affect your life even if you're an Iraqi peasant goat farmer who hasn't updated his blog in weeks. And of course what Microsoft and AOL do, sets a precedent for what other companies can get away with -- so every anecdote about boneheaded mail filtering that you hear about, is potentially significant if it could become the norm.
I wasn't thinking about this when I wrote to Hotmail in 2006 about their users missing our e-mails because of the filter blocking them as "spam", as I jumped through some hoops before talking to a human. But the mentality of the people that I talked to seemed to be that "non-paying sender" and "spammer" were more or less equivalent. I explained that we only send mail to people who request it, we verify all new subscriptions, and every message contains an unsubscribe link. Hotmail replied, "The filters are there for the protection of hotmail subscribers. The Junk Mail Reporting program isn't in place to help you circumvent those filters... I recommend you do what you can on your end to educate your subscribers, keep your mailing lists up to date and follow the other guidelines for senders on the postmaster.msn.com site and don't expect our junkmail filters to be modified." Call me a dreamer, but I thought the whole point of having humans in the loop was that if the filter is making a mistake, you can modify it.
(Many people have suggested that I publish via RSS instead of e-mail. For me the problem with that is that our newsletter is used to send out the location of new sites for getting around blocking software, so that by the time the last sites have gotten blocked in most places, the new ones are being mailed out. As long as people can access their e-mail accounts, they can get the new site announcements. But if we used an RSS feed instead of e-mail, then blocking software companies would just block our RSS feed. And besides, even a normal newsletter publisher would lose most of their existing subscribers if they told everybody that they had to switch over to RSS to receive the newsletter in the future. Is it right that they should have to pay that penalty just because an ISP is falsely labeling their mail as spam?)
The $1,400 "fee" that you pay to help get your mail unblocked at Hotmail's servers, is to a third-party company called Sender Score Certified, formerly known as Bonded Sender, whose certifications are used by Hotmail. I didn't think I could get anywhere discussing with them the ethics of charging people to unblock their mail as spam, so instead I asked them, what would happen if someone forked over the cash and then their enemies started filing phony "spam" complaints against them, hoping to get their certification revoked? I think this is an important question for any spam policing system, but unfortunately it usually puts people on the defensive, because there's no real answer -- if you accept spam complaints, then you allow crackpots to do damage, and if you don't accept spam complaints, how do you know if a client is spamming? Bonded Sender's rep replied, "Do you really have that many enemies? If you are running a true 'non-profit', who is that mad at you? Maybe finding this out should be a little higher on the agenda. Where is the 'peace' in Peace Fire?" I asked the same question again, and eventually he said that complaints were based on SpamCop complaints -- a system known for being set up so that anyone could report anyone as a "spammer" without proof -- and that each such complaint would cause $20 to be depleted from your bond, and once it was all gone, you'd lose your certification.
"After reading all of your emails you have sent me," he continued, "it seems that you aren't really trying to find a solution to anything. You are mainly interested in pointing out flaws in programs and letting me know about how people don't like you." Actually I don't think I have enough enemies to cause me serious problems, but I'm working on it! I aspire someday to reach the level of notoriety achieved by groups like MoveOn.org, who does have enough enemies that if systems like Hotmail's were widely deployed, MoveOn would have to worry about militants falsely reporting their mails as spam in order to cost them money and/or get them blacklisted. That's the other basic problem with certification systems: they don't just favor the wealthy, they also favor the non-controversial. Do we really want an Internet where everyone has to be careful about who they offend, because anyone could get them listed as a spammer? I mean, that would be like having a free online encyclopedia where anyone could edit your bio and say that you killed someone!
Is it legal to block someone's mail as spam until they pay you money? Whoah, before I even use the l-word, I'd better insert a disclaimer. No, not that disclaimer. Nobody could possibly think that I was a lawyer after I filed motions in court with the pages stuck together to prove that judges weren't really reading them, unless I had some kind of career death wish. The disclaimer is that at least from my own experiences suing spammers, the law is whatever the judge wants it to be. Some judges say you can sue spammers out-of-state, and some say you can't. Some of them say you can sue in Small Claims only if you've lost money, and some say you can sue for damages even if you haven't lost anything. Some of them say a non-lawyer is allowed to represent their own corporation in court, and some say no. If judges don't even agree on the basic rules, good luck getting a legal consensus on a more abstract issue. Asking objectively if deliberately blocking non-spam e-mail is "legal" is like asking "Do apples taste good?"
But as a general rule, I think courts take a dim view of systematically publishing false statements about someone to try and get them to pay you off in order to stop. Unless you're a spammer, every time Hotmail labels one of your messages as "Junk Mail", they're publishing something untrue about you (at least to everyone who sees the message labeled as junk), and if you've brought it to their attention, then they may agree the statement is untrue but they go on making it anyway. In libel law, liability is partly determined by how much someone has been harmed by the false statements about them; in the case of mail being blocked as "Junk Mail", the harm is about as direct as possible, since because it was falsely labeled as spam, most users will never see it. This is why I think people who say "Hotmail/AOL/Yahoo can do whatever they want with their private network" are missing the point. If I used my own "private network" to publish a subscription service that people use to find out the names of new convicted felons in their neighborhood so that they can avoid doing business with those people, would you have no objection if I "accidentally" included your name on the list, but promised to review your situation for one low fee of $1,400?
There was a time in the late '90's when if Microsoft had said they were going to be blocking non-partner e-mails as "junk mail" unless senders paid a $1,400 "fee" to get unblocked, Congress would have hauled up Bill Gates and given him a good wedgie and told him to cut it out. But these days the Department of Justice doesn't have time to worry about other people's lost e-mail when they can't even lose their own e-mails properly.
All this happened at about the same time Goodmail was first attracting controversy for charging senders a quarter penny per message to bypass AOL's spam filters. When the EFF registered DearAOL.com to call attention to the issue (now defunct, but the Wayback Machine saved a snapshot), I hopefully registered DearHotmail.com in case any anyone wanted to use that example as well, but nothing ever coalesced around that. Meanwhile, some random mis-fire seems to have cancelled out some other random mis-fire, and Hotmail is apparently no longer blocking my mail, at least until this article gets published.
As far as I can tell, the only reason Hotmail got off scott-free and AOL/Goodmail didn't, was that Hotmail snuck their system in quietly, while AOL and Goodmail announced their partnership with great fanfare, apparently overestimating the extent to which e-mail publishers would greet them as liberators. This doesn't reflect very well on the outrage grapevine, people.
But the lesson took -- when Goodmail recently announced their partnership with four more e-mail providers, Goodmail featured a press release on their own site, but of the four ISPs, Verizon was the only one issued their own press release. Apparently the other three saw what happened with AOL/Hotmail and got the message.
You didn't ask, but my own idea for an anti-spam system would be to follow a protocol such that when you reply to a list server to confirm your subscription, the reply goes to an address like:
When you send that reply from your Hotmail account, Hotmail would see the "sender=bennett=peacefire.org" part of the address you're replying to, and recognize that to mean that you want to receive future messages sent from bennett - at - peacefire.org. So future messages from that address would be weighted not to be blocked as spam for that user. It wouldn't do anything to unblock person-to-person messages that get blocked as spam, but those are not mis-blocked as often as legitimate newsletters are, and this method would give newsletter publishers a way to get whitelisted at the same time that the user confirms their subscription. It wouldn't be perfect, since if the user then unsubscribes from the newsletter, but bennett - at - peacefire.org is a jerk and continues to send them mail, that mail would still get through because the Hotmail filter for that user still "remembers" that they confirmed their subscription, and doesn't know that they unsubscribed. However, the vast majority of nuisance spam comes from people you've never heard of, not from people whose newsletters you signed up for and then continued to send you mail after you unsubbed.
Or, suppose you're Amazon and you send mail to millions of users from firstname.lastname@example.org, but you don't want everyone to have that address whitelisted because then a spammer could use the address "email@example.com" to spam millions of people, hoping it would get through the filter of anyone who's an Amazon customer. So in that case people could confirm by replying to:
When the user sent their reply to that address, Hotmail would parse out the "sender=orders=amazon.com" part and the "senderip=22.214.171.124" part, and whitelist future mails from that address that come only from that IP.
I like this idea because it treats everyone equally, regardless of wealth or popularity, as long as they confirm subscriptions to their newsletter (which is regarded as good mailing list hygiene anyway). On the other hand, if you prefer filtering systems that work better for people who are rich and never offend anybody, then you'll be pleased to know that those seem to be winning.