Internet Rights
Part I

This is the first of a three-part series discussing the efforts to undermine the expansion and freedom of speech on the Internet. The purpose of this series is to educate and motivate the online community into taking positive action to protect their Constitutional privileges and rights on the Net. As an advocate for unrestricted growth of the Internet, I believe the public debate should continue to determine what should be considered the standards for creating responsible Internet marketing and e-commerce practices. As current legislations are being lobbied in Congress, Joe Citizen should be aware how these new laws will affect his ability to create e-products, discover new markets and generate untold sources of revenue on the Net.

In general, spam is defined as unsolicited commercial e-mails. Most people classify spam as any e-mail they receive that they did not request, such as prayers, chain letters, announcements, and newsletters. As intrusive as they may be, they are all covered under the First Amendment of the US Constitution. Though there have been legislation banning "fraudulent" or "misleading" spam, the Internet is no different from any other communications medium. The Supreme Court has upheld the right for anyone to knock on your door on Sunday morning, ring your phone during dinner, fax you all day long and send you messages on where you should be receiving your next supply of Viagra.

Most people will acknowledge that the volume of unsolicited e-mail we receive daily is what disturbs us. The Radicati Group, a Palo Alto market research and consulting firm, recently estimated that e-mail traffic this year will reach an average of 7.3 billion messages a day, and that 32 percent of it will be spam. According to Shinya Akamine, President and CEO of Postini Corp., just since January, spam has climbed from 21 percent to 36 percent of the billion messages a month that his company filters for Internet service providers and corporate networks. The spamming trend continues to increase at an exponential rate.

In an effort to address the growing corporate concerns (lost manpower, bandwidth consumption, and infrastructure costs) surrounding spam, the mega corporations, ISP’s, and consumer protection groups have begun to lobby for their own legislative remedies. Unfortunately their knee jerk response is typically one sided, restrictive, and anti-small business, not to mention unconstitutional. What they are proposing in the name of free market controls is the legalization and hence governmental protection of Terms of Service (TOS) agreements that allow them to implement spam Prevention Early Warning System (SPEWS) and Mail Abuse Prevention Systems (MAPS). Companies like Dell Computers, AOL, and AT&T want to be able to block or terminate e-mail accounts without due process or any arbitration process, all with the blessing of the U.S. government.

The Internet is a public communication utility that is changing the way the world communicates, not to mention we need to recognize the economic benefits the Internet is delivering everyday to our overall economy. It is Corporate America’s belief that if a consumer or small businessman can not afford his own mail server and high speed data line then his options to promote his message or market his business online should be limited and subject to their oversight and control. They have found an ally in anti-spam consumer groups who will gladly give up personal freedoms if they don’t have to open one more advertising-based commercial e-mail solicitation. The funny thing is that these same groups are not as energetic about legislating pop-up or banner ads.

According to a report by Criterion Economics (a Washington-based consulting company), the U.S. could lose as much as $500 billion a year in "potential economic benefits" because of a slowdown in the Internet. With the economy sagging and advertisers hunting for low-cost ways to promote their wares, e-mail marketing could be just the ticket to pull the economy out of the doldrums. E-mail marketing costs -- less than one-thousandth of a cent per message for high-volume spammers, is far less, per recipient, than any other advertising medium. And, surprisingly, response rates to spam tend to be twice those for similar pitches in other media, according to The Radicati Group. In short, spam works - many people want the information they are receiving. They want it as bad as they want the junk mail they receive everyday full of coupons, discounts and special offers.

Internet and e-mail marketing opens the door to anyone looking to reach untold numbers of potential consumers of a variety of demographics. Small town America can now electronically market and sell their services to urban America or abroad. But how can they connect to consumers in those markets if their means to distribute their message economically becomes encumbered with fear of legal or criminal reprisals. Although, the courts continue to uphold the right to promote commerce similar to the way we express our political opinions, how the message is initially perceived once it’s in your inbox will become the nucleus of prohibitive legislation.

Bills in Congress that would require companies to get explicit permission from recipients before sending electronic ads (the old chicken or the egg question) have been introduced regularly in recent years, but have gone nowhere. The most recent example is Senate Bill 630, introduced last year by Senators. Conrad Burns, R-Mont., and Ron Wyden, D-Ore. Known as the Can spam Act, the bill is still pending in the Senate, but during committee hearings it was watered down to the point that now even leading anti-spam activists oppose it. The current goal is to author some type of legislation that would deter scam artist, and mass-marketers while still providing access to politicians and corporate advertisers. Jail terms and fines have all been mentioned as possible deterrents and penalties.

Mainstream companies such as PayPal and Amazon.com, who fear that new restrictions would hamper what they consider legitimate e-mail marketing, have lead the opposition to a tight legal ban on spam. "This is much better handled without a legal framework but as a matter of industry self-regulation," said Louis Mastria, Director of Public and International Affairs at the Direct Marketing Association. A California law sets rules for spam that require the sender to begin the subject line with "ADV:" (meaning advertising) and include in the first line a toll-free number or working e-mail address for getting off the sender's list. Another state statute prohibits use of a California company's equipment to transmit unsolicited e-mail ads if the company has a policy barring such use.

So what can be considered responsible Internet marketing and e-commerce policies? Generally speaking, most experts agree the following practices are considered earnest and forthright:

Always start by sending the unknowing recipient a simple invitation to inform them that you have their e-mail address on your mailing list. That invitation should explain the general content you plan to send them and require some action on their part to approve or opt-in to receiving e-mail from you. Make sure you save the reply or opt-in message. This will protect you if anyone accuses you of spam or your ISP tries to take action against you.

Secondly, be sure to input your e-mail mailing list in the Blind Carbon Copy (Bcc:) form field of your mail program. This will protect the identity of your recipients and ensure that no one will be able to copy your mailing list and contact your people without your permission or knowledge. Remember, even though e-mails are covered under copyright laws, you cannot write names on a public wall and expect no one to use them. If you do not protect the privacy of your mailing list you can be sued for damages, especially if you have promised not to release their names.

Next, always clearly identify the content of the message in the subject line. Remember if you trick someone into reading your message, not only will they not respond but you will also create a bad impression on yourself and your product. Business is based on relationships and you always want to start with a good first impression.

Lastly, always clearly identify yourself (snail mail address and phone number) and provide a simple way to be removed from any further mailing. This is especially important if you want to ever hear from them again. Using a dummy e-mail address only frustrates the recipient and leads them to believe that something is shaky either with your product or you. It is also a good thing to include a Privacy Policy statement saying you will not sell or release their names to any third party. Even if someone wants off your list they may still want to do business with you if you leave the right impression.

In conclusion, the information revolution has brought with it many benefits. E-mail marketing is just one example of those benefits. It has the ability to inform, educate and foster innovative ideas, open and explore unfiltered markets, and generate new sources of revenue. But with all abundancies, it has also brought new problems, social dilemmas and legal ramifications. Consumers want protection from unwanted solicitations. Companies are looking to promote their products with a broader spectrum and cut costs, and Congress has to protect the rights of all involved. How we deal with these issues will define the future of the Net and our nation.

Next month: Copyright Protection