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URL:  http://boards.fool.com/for-what-its-worth-i-responded-to-jim-because-he-21940532.aspx

Subject:  Re: Oops. Date:  1/20/2005  6:25 PM
Author:  them Number:  10633 of 16419

For what it's worth, I responded to Jim because he has provided help to myself and others here on the Fool when I've needed it. Here, I saw an opportunity to return the favor and share some expertise/experience that I happened to have. Some of the replies here clearly show that spam is a realm - not unlike oh, say, webmastering - where some of the important nuances aren't necessarily intuitively obvious or clear from the outside.

I have attempted - and will attempt - to offer information when I feel I can add value to a discussion, and especially if I see an opportunity to save someone - especially a Fool, who has helped myself and others - trouble down the road. I've assumed good intentions and tried to behave accordingly - I will do my best to continue along these lines, and will also apologize if I have not been successful in this or in explaining these issues clearly.

Again, I saw an opportunity to save someone I perceived as a good fellow a lot of trouble down the road that he didn't see coming. If this helped others as well, all the better. This is a community I've grown attached to in the 6+ years I've been a member, and while there are few here I really *know* on a personal level, the assistance, knowledge & cameraderie I've gained here are really worth something to me. People on this board and others have kept me from making some embarassing mistakes and I wouldn't feel right about not at least trying to return the favor.

Jim writes:
Let me enlighten you on the meaning of the word "AND". When AND appears in a sentence, then both phrases of the sentence must be true in order for the sentence to be true
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Again, I am afraid you are wrong, forgiveably as it happens (explained below).

An aside for any nitpickers reading this; may I point out that nothing in that less-than-optimally written definition of Opt-Out precludes more than one solution set to the definition of Spam. E.G. - "All critters with four legs AND that bark, are dogs" does NOT mean that a critter with four legs that doesn't bark isn't a dog.

Babble quotes & observes:
"All bulk email sent to recipients who have not expressly registered permission for their addresses to be placed on the mailing list, and which requires recipients to opt-out to stop further unsolicited bulk mailings, is by definition Unsolicited Bulk Email."
I have bolded the 'and' above because as it reads, it implies that a mass mailing has to violate both clauses of this sentence to qualify as spam. As I understood it, jiml8 only violated the first clause.

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To me - and likely to most with a background in spam/abuse - it would seem clear there is a problem here. (hence the "forgiveable", above)
My apologies for not catching that myself. This was a definition of "Opt-Out", not a definition of Spam - and taken out of that context makes it more confusing (it could have been written more clearly, to be sure).

Lest there be any further confusion on this point, and to avoid any accusations of this being only my opinion, Steve Linford (the founder of Spamhaus) kindly confirmed this for forms sake, in an email to me - the relevant part of which is:
===================================
That sentence relates specifically to "Opt-Out".

Naturally all Unsolicited Bulk Email is spam. The definition being here:
http://www.spamhaus.org/definition.html

===================================

Moving beyond that misperception..

Jim wrote:
Yeah. It doesn't matter. To you. It does matter. To me.
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When I said "It doesn't matter that...", I was not saying his business had no importance. I was pointing out that the fact that it is his business is irrelevant to whether a course of action was ethical or not. I meant no disrespect to his business. As it happens, believe it or not, his business does matter to me. I've followed his postings about it with interest, and learned from some of his experiences. All the more reason to not want to see it harmed by an ill-informed decision.

Babbel wonders reasonably:
How can they find new customers if they are not allowed to send even one email to find out if they may be interested?
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There are many ways, and it's a good question. I will compile information and provide it in a separate post. The relevant point here is simply that it is not incumbent upon a consumer to provide any business with a way to advertise that is easy for the business - nor to unwillingly subsidize the advertising. It's not the consumer's responsibility to help the advertiser. This is NOT the same thing as saying there should not be any advertising - simply that the advertiser needs to foot the bill himself. Spam is junkmail, postage due - with no option to decline the charges.

Babble also suggests:
I note that the US Government has declined to ban unsolicited email, and I think this was their reasoning - not to put another obstacle in the path of small business.
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This is perhaps a topic for a whole other post, but I will suggest that it was not small businesses they were avoiding inconveniencing. I will also point out that the CANSPAM act did not obviate all more restrictive laws. "Declining to ban" is not the same thing as saying it is ok. Is there anyone here who really looks to the government to decide whether A, B or C is a Good Thing? Does the lack of a law prohibiting an action make it by default, ok?

and
If jiml8 is going to grow his business, hire people and pay more taxes to help the rest, is it so bad that he sends potential prospects one single email they can easily delete or filter out using software?
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Sounds reasonable on the surface, right? He's only one small business - how much harm could he do even if he tried? Here's the problem - it doesn't scale. There was a study done a couple years back that illustrated this. If every small business in the US sent only ONE email to you (let alone those who would not stop at just one), you would spend the rest of your life doing the classic spammer suggestion - JHD (Just Hit Delete). More businesses come into being faster than you would be able to keep up with. Assuming an 8 hr workday, ALL of your time would be spent asking to be removed/deleting.

Look at it another way. The internet is a big pool in which we can all relax, play, work, whatever. Every now and then someone is too lazy to get out and go to the lavatory (or perhaps just plain has an accident) and pees in the pool. Not very noticable when it's just one person in a big pool - but when more and more people start doing it... and when peer pressure no longer precludes leaving "floaters", the pool gets awfully rank, awfully fast. Further, after a certain point, it ceases to be relevant whether someone is lazy or through no fault of their own, incontinent.

The answer is simple. Don't pee in the pool - and remove those who do.

The Jtrain (who is not a Republican) responds to Mark:
Wait, so you'd rather indulge your own animosities than help those rank-and-file Orbitz programmers, data entry, and travel agents earn a decent living? Sounds an awful lot like "Me first, regardless of what it costs anyone else."
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I don't think that follows. Choosing to ignore Orbitz (for instance) is not the same thing as "Me first, regardless of what it costs anyone else". Protecting oneself - not by taking action against, but simply by avoiding completely optional interactions - from someone who IS evincing said attitude is hardly being selfish. I would call it prudent. And I'm not a Republican, either... ;-)

TMFSpeck then pointed out a very salient fact:
The OP omitted some key information (where did the addys come from, was there an unsub link, was there clear contact info, etc.)."
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This is indeed a critical point. It was my assumption that since Jim did not state this when questioned, that he had in fact, not collected these addresses in such a way that this subsequent mailing was defensibly legitimate. Especially factoring in his complaint ratio and manner in replying, it seems quite unlikely.

Were the following methods used in building the list in question?
- New subscriber's email addresses must be fully verified before mailings commence.
- Terms and conditions of address use must be fully disclosed.
- Acquired lists must be used for their original purpose.
- One subscription, one list.

I would love to be wrong on this - truly, no sarcasm here - but if the use of this list is at all informative, I am guessing it's origin is suspect as well.

snaray then points out:
If the terms presented to them when they signed up to that original list (ie. the "contract" for list membership) doesn't prohibit you from sending more messages, then you're free & clear. After all, they gave you their email address for a reason...
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Right (although I might phrase it a little differently) - IF the list is valid in the first place (a clean list, fully verified and confirmed), AND the recipients have already agreed to receive further emails OTHER than what they signed up for. Those are some important provisos, and typically a user signs up for a specific purpose, not for just "anything".

and then helpfully adds:
let's say you're subscribed to mailing "A", but did not check off the "send other emails" option. However I want to tell you about the brand new subscription called "B". The next time I send mailing "A", I can still put a note at the end of it saying something like "there's a new subscription option called "B", if you'd like to enable it, do so at the account administration page <link>
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That's a great example of one way to accomplish the objective. Care must be taken however that the "note at the end of it" advising of B's existence is not simply a sneaky attempt to include B itself, in A. All such contracts need to be interpreted as strictly as possible in the favor of the consumers privacy. Why? Look around you. Last time I checked a few months ago, roughly 3/4ths of the mail coming into our servers was spam.

The point is not to do away with business or advertising, but simply to keep the costs where they belong - the responsibility of the business.

Speck refers to a hypothetical message that might read "At some point you requested info via email from me. Here's a sample. If you'd like more, opt-in for a subscription. You will receive no further messages unless you opt in. Here is my mailing address and contact information.", and comments:
While such a message may be "spam" by a strict definition (any non-transactional business email that wasn't specifically requested), it wouldn't necessarily be UBE, and, furthermore, would likely pass muster with CANSPAM laws (NOTE: I am not a lawyer).
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As reasonable, respectful, and generally knowledgable as you are, I really hate to disagree with you, but a couple of misconceptions must be corrected here (What? A TMF'er is NOT omniscient? ;-)
A. "Any non-transactional business email that wasn't specifically requested" is not the definition, strict or otherwise, of spam.
B. Any value for "transactional" (unless you mean "solicited") or "business" is irrelevant in terms of spam. Content of any kind is not part of what makes spam, spam. Remember, it's about conSent, not conTent.
C. The "B" in UBE stands for Bulk, not Business.
Spam, "strictly" speaking is Unsolicited, sent in Bulk, in the form of Email. Jim could send each of his list members pretty much anything he wanted to - one at a time - and avoid invoking a strict definition of spam. However, one can still alienate customers, violate Terms of Service/AUP's, be added to various Block Lists, and even potentially be successfully sued - all while avoiding this strict definition.
D. Passing muster with CANSPAM similarly does not preclude any of these Bad Things happening.


Speck then writes:
jiml8's not requiring opt-out. He's requiring opt-in. Presumably those who don't opt in would then recieve no more emails from jiml8.
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Again, I fear I must disagree. Think about it. He is NOT requiring opt-in if he is sending UBE before the opt-in actually happens. Make sense?
He is also simply not in a position to be requiring anything of anyone who has not requested his mailings - and for that matter, "Presumably" does not scale. We've learned one cannot presume any such thing in the larger group.

Subtle difference, but an important one nonetheless.
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Agreed. ;-)

At the end of the day (and of this very long post, which I sincerely hope may have clarified, enlightened, and caused some rumination), I am grateful for:
- anyone taking the time to read it
- TMFSpeck, for doing his typically exemplary job of inspiring gentlemanly behaviour of Fools
- the opportunity to (hopefully) provide information to anyone who might find it of some use, and to learn more myself and see how things may look from others' POV.

Finally, jiml8 wrote:
I am tired of being a "nice guy" and trying to follow rules and avoid pissing people off while everyone around me is eating my lunch by doing just that. My social conscience is not merely tired, it is exhausted, and I have decided to throw it out. Forever.

From now on, Me first, regardless of what it costs anyone else.

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This has to be one of the most disturbing things I have ever read on the Fool. Ever.

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Jim - if you should somehow happen to read this (despite "ploinking" me), I am truly sorry for whatever circumstances have occurred to cause you to feel this way. I wish it hadn't happened to you and I wish both you and your business well. If I hope you can move forward without making the "pool" a nastier place for the rest of us at the same time (which is what keeps this from being a simple matter of poking my nose into someone else's business), well, that's not necessarily inconsistent with the former wishes.
Good luck to you.
========

A little help from someone here who hasn't been, err, "ploinked"?
If someone would be so kind as to share with Mr Jiml8 the clarification of the misunderstood "definition" and Steve's confirmation (including the link, http://www.spamhaus.org/definition.html ), then I would sleep easier tonight knowing that regardless of what he chooses to do, he at least isn't acting on a critical misapprehension. Thanks.
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