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Two months prior to that meeting, Joffe had created an e-mail preference service called SAFE-eps to rival the DMA's planned service. Unlike the DMA's e-mps, SAFE-eps had the support of the Internet community and allowed domain-wide opt-out, including for ISPs. Among its first registrants were America Online and Microsoft's Hotmail. He had hoped that the DMA would adopt his approach -- but it didn't work out that way.

"The DMA position is arrogant and absolutely untenable," says Joffe, "by taking this [opt-out] position, the DMA is undermining the fundamental principles of the Internet -- specifically by shifting the costs of advertising onto the recipient and not allowing ISPs to control their own destiny."

Joffe had planned the Spam Summit quietly, to avoid the wrath of the legions of spam-hating netizens who consider their personal computers to be private property (unlike postal mailboxes, which are technically owned by the government) and see the proponents of opt-out marketing as criminal trespassers. But now that the marketers have failed to honor what the anti-spam lobbyists considered a mutual agreement, Joffe predicts dire consequences: "I'm terribly distressed by this. I'd hoped that logic and good sense would prevail and that it wouldn't come to this. We tried to explain that although we were only nine individuals, we spoke for hundreds of thousands of people. There have been mumbling and grumbling until now, but this will turn out to be the pivotal point by which the DMA and Internet community at large will finally go head to head. This will be the catalyst which will begin the war at large between the Internet and the DMA.

Some anti-spammers, who have loosely grouped themselves under the name the Lumber Cartel, are already calling for retaliation against the DMA and its members. If the DMA condones the use of unsolicited commercial e-mail, these activists reason, they can turn the tables and target the DMA and its members with "exciting news and opportunities" of their own. Others are calling for a boycott of all DMA members, including IBM, AT&T and others. (Microsoft, which sat on the anti-spammer side of the table at the summit, is also a DMA member.) One anti-spammer has already proposed a software program called "Pandora's Box," which would automate the process of responding to unsolicited commercial e-mail by targeting executives from the company that sent the spam.

But Nicholas and other anti-spam lobbyists advise against fighting abuse with abuse. "Our only recourse is to go right over their heads to approach Congress and let them know that the Internet community has met with marketers in an effort to help self-regulate, but the DMA has reneged on every promise it made," he says.

Joffe agrees. "Federal legislation is anathema to the Internet culture, and we were hoping that it will get solved without federal interference," he said. "But we now know that we need the weight and power of law behind us. It's the only way to control spam."

Ray Everett-Church, a founding member of CAUCE and chief privacy officer and vice president of public policy at Alladvantage.com, has already been working with Congress to help craft such legislation. There are currently four different anti-spam bills before Congress, and Everett-Church is advising members of the House Subcommittee on Telecommunications, Trade and Consumer Protection on the issues and their implications. One bill, the Can Spam Act, would give ISPs the right to post notice that they do not accept spam and to sue spammers who violate their wishes; it would also create criminal penalties for hijacking domain names when sending spam.

"I think that ultimately we'll see legislation that will combine the best of all current pending legislation, that gives both consumers and ISPs means of protecting themselves from unwanted ads, and gives them legal recourse if their wishes are not respected. That's the bottom line," Everett-Church says.

Meanwhile, visitors to the DMA's annual conference last month reported seeing booths and exhibits displaying products that would facilitate spamming -- and violate certain state laws -- including a computer program to help marketers "guess" at individuals' e-mail addresses by generating variations of a person's name.

"The only conclusion I can draw from the apparent interest in these services is that the direct marketing industry still doesn't understand why unsolicited commercial e-mail is a bad idea for all involved," author Levine wrote in a press release earlier this month. "Flooding the network with unsolicited commercial e-mail is as damaging to the sender as it is to the recipient. Understanding this is the first step towards understanding how to take advantage of the promise of permission-based online marketing."

Spam has long been employed by unprofessional and unethical business people (referred to by anti-spammers as "chickenboners" -- an epithet synonymous with "trailer trash," or someone who gnaws on fried chicken and throws the bones in the back of the trailer) to tout scams, porn sites or the latest way to "fire the boss and kill the alarm clock." But in recent months, some legitimate businesses have been charged with venturing into the sticky swamp of junk e-mailers -- among them Amazon.com, Harper Collins, and RealNetworks.

DMA president Wientzen, in his keynote at the marketers' ball, acknowledged that spam has been tainted by scams and fraud but stated: "[W]e cannot let the unsavory, dubiously employed bulk e-mail out there destroy the opportunities of targeted, sophisticated, responsibly used commercial e-mail, which, without doubt, holds promise as a powerful marketing tool ... The DMA is endeavoring to do just that: preserve unsolicited commercial e-mail as a business communications tool, while also supporting the development of various permission marketing models."

Wientzen's only mention of opt-in marketing was to denounce it: "[W]e feel that most of those who push for an opt-in only regime have very little understanding of the incredibly negative impact it would have on the future use of e-mail as a marketing tool."

Remarks like these are just untenable to the likes of Nicholas. "Thank you, Bob [Wientzen] and Jerry [Cerasale]," wrote Nicholas in his newsgroup posting. "Thank you for showing in a public and concrete way that even though you may dine on food finer than KFC and live in a neighborhood better than a trailer park, from a moral standpoint you're really no different from the chickenboners we despise so much."
salon.com | Nov. 12, 1999

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