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Dog Eats Opt-Out Requests, FTC Is Not Impressed

John Levine

Last week the Federal Trade Commission settled a lawsuit against Yesmail, a large ESP (Email Service Provider). The facts of the case are not in dispute, but their meaning is.

Yesmail, like most large ESPs, has absorbed a number of its smaller competitors over the years including a company called @Once. Back in 2004, they screwed up their incoming mail so that a whole lot of bounces and opt-out requests were erroneously filtered out as spam. As a result, thousands of people who'd told @Once to stop sending them mail kept getting mail anyway.

Among the modest demands that CAN SPAM puts on bulk mailers is that they have a working opt-out policy. Since they didn't, the FTC filed suit.

Yesmail, which is generally well behaved, feels extremely ill-treated. They argue that the mistake falls under the exception in CAN SPAM that says:

A return electronic mail address or other mechanism does not fail to satisfy the requirements of [having a working opt-out] if it is unexpectedly and temporarily unable to receive messages or process requests due to a technical problem beyond the control of the sender if the problem is corrected within a reasonable time period.

They evidently think that they fixed the problem within a reasonable time period, while the FTC didn't. Since everyone seems to agree that they missed thousands of opt-outs, I have to agree with the FTC.

ESPs are chronically complaining about how hard it is to follow all the rules, all of the requirements the ISPs put on them, and the various laws that affect them, and it's all the fault of the nasty spammers. They're mostly right (except for the part about it being entirely the spammers' fault, since a lot of it is due to their own lousy practices), dealing with all their issues is hard, but you know what? Tough noogies. Each time they screw up, it makes a mess that someone else has to deal with. If they can't figure out how to send mail in a way that recipients will accept and that follows the law, that's nobody's problem but theirs.

By John Levine, Author, Consultant & Speaker
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