The DMA's doublespeak on spam

CNET News.com's Declan McCullagh explains the real story behind the Direct Marketing Association's position that unsolicited e-mail entreaties to us shouldn't be considered spam.

Declan McCullagh
Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
7 min read
Robert Wientzen, president of the Direct Marketing Association, has an unusual view of what types of junk e-mail qualify as spam. Wientzen said during an appearance on CBS News last week that spam is only "e-mail that misrepresents an offer or misrepresents the originator--or in some way attempts to confuse or defraud people."

Let's parse that sentence closely. The DMA claims that unwanted e-mail is spam if, and only if, it happens to be fraudulent or confusing. Because the DMA's members are legitimate, established businesses, Weintzen tells us, their unsolicited e-mail entreaties to us shouldn't be considered spam.

That's news to me. Sure, plenty of the unsolicited bulk e-mail that I get comes from loathsome bottom-feeders that claim a close personal relationship with a deposed Nigerian dictator or tout "herbal Viagra" of dubious provenance and utility.

But my in-box also is cluttered with solicitations to buy products that seem, well, legitimate: reports on the stock market, used office equipment, discount clothing, cheap cellular phones, etc. Nonfraudulent in nature, those are the kinds of unsolicited bulk advertisements that the DMA believes its members should be allowed to send consumers.

That's precisely wrongheaded. Spam is not about content. It's about consent. Because I've used the same e-mail address since 1995, I get a heck of a lot of spam--and I've never consented to receive any of it.

In the argot of marketers, the DMA backs an "opt out" approach, meaning that marketers may spam you as much as they can until you specifically request to be deleted from their mailing list. An alternative approach is known as "opt in," meaning marketers would be prohibited from sending you e-mail unless you granted them permission first.

It's easy enough to blame the DMA for its spam-until-you-say-uncle views, but it's also important to realize from where the organization's views originate. Since its creation in 1917, the DMA has been wedded to the idea of opt-out for telemarketers that call you on the phone or direct mailers that send you postal mail. For the DMA, which has an annual budget of about $35 million, opt-out is a deeply cherished principle that they will not relinquish without a deadly serious fight.

It's easy enough to blame the DMA for its spam-until-you-say-uncle views, but it's also important to understand from where the organization's views originate.
"For more than 80 years, direct marketers have fought for opt-out, whether it is with financial, health or marketing data," said Ben Isaacson, who until last year ran the Association for Interactive Marketing, a DMA subsidiary. "This is not a position easily changed, and more important, if it is changed, it will domino into all of the other opt-out positions the DMA has taken over its history. Certainly, this may be the time to start considering an overall opt-in approach to all data collection, but the majority of the DMA's 4,000 member companies are not ready for that." (The DMA's 2002 annual report asks its members this terrifying question: "Should Uncle Sam be allowed to define ALL e-mail marketing as spam?")

DMA members are not merely catalog retailers and telemarketers. They include some of the most prominent technology firms, including Microsoft, IBM and AT&T. Along with those of non-tech companies, its board members include America Online Vice Chairman Janice Brandt (known as the "disk lady" for her famous direct marketing scheme), DoubleClick Chairman Kevin O'Connor, Cisco Vice President Jere Brooks King and Yahoo's New York director, Jerry Shereshewsky (dubbed the "Yoda of Web marketing" by Promo Magazine), according to the DMA's 2002 annual report.

Add the political muscle of other active DMA members like Procter & Gamble, Mellon Bank, Prudential Insurance, Citigroup, and Chase Manhattan (also according to last year's annual report), combined with the tremendous impact that direct marketing has on the U.S. economy, and you start to get a feel for how much clout the group has in Washington, D.C. The DMA estimates that direct marketing efforts--adding together online and offline figures--"are projected to generate nearly $2 trillion in sales" this year. Even if that number is inflated, when the economy's struggling, how many politicians are going to vote to curb that kind of consumer spending?

Undeterred, a handful of left-leaning groups are hoping to change some minds on Capitol Hill. Last Friday, 13 groups sent a letter to Congress that argues for an opt-in approach, saying: "The rule for bulk, commercial emails should be that they can only be sent with the recipients' prior affirmative agreement, with an exception for previously existing business relationships."

Marc Rotenberg, director of the Electronic Privacy Information Center, which organized the letter, admits that it's unlikely that opt-in will succeed soon. No antispam bill in Congress with which either of us are familiar (there are nearly a dozen so far, so it's difficult to keep track of all of them) mandates opt-in, thanks in no small part to the DMA's influence. Still, says Rotenberg, the DMA seems "to be repeatedly behind the curve," and the political winds are shifting.

Maybe. The European Union, which tends to be far more regulatory than the United States government, did adopt opt-in and has set a deadline of Nov. 1 for e-mail marketers to comply. Last week, the DMA condemned the move: "The EU's policy simply does not help either businesses or consumers...Banning commercial e-mail keeps the consumers in the dark about new products and opportunities. It will only stop e-mail from legitimate companies because the real spammers are not going to pay attention to any law."

In the United States, a few Democrats seem sympathetic to opt-in. During a recent U.S. House of Representatives hearing, Rep. Robert Scott, D-Va., wondered whether "there should be an unlimited right to fill up your mailbox with e-mail." In the Senate, Vermont's Patrick Leahy, the senior Democrat on the Judiciary committee, said in a floor statement last month that he'd like to see "an opt-in system, whereby bulk commercial e-mail may only be sent to individuals and businesses who have invited or consented to it."

The DMA chose not to respond to repeated requests for comment on Friday. Isaacson, the former DMAer who now runs an e-mail consulting firm, predicts that there's no chance that Congress will enact an opt-out law for spam.

"If you look at the legislation, it's mostly meeting the DMA's concerns," Isaacson said. "Antispam advocates can rally all they want. At the end of the day, this legislation is going to pass, and it's going to have the DMA's stamp of approval. It will be opt-out. In many ways, it will legitimize spam. We'll see a great influx of your grey-type marketers sending more opt-out email."

Isaacson's right. By preempting state laws, federal legislation may effectively give any e-mail marketer the right to repeatedly spam everyone on the Internet until the hapless recipient clicks on the "unsubscribe" link. Think about it: Every one of the millions of small businesses, nonprofits, charities, and religious groups is a potential spammer.

Even so, I'm not convinced that an opt-in law is wise. Because of the First Amendment, it would only be constitutional if it targeted commercial solicitations, which means that nonprofits, charities, religious groups and politicians would be able to continue spamming. (Trivia: Not one bill in the U.S. Congress would restrict political spam.) And a law that targeted only for-profit communications could easily sweep in legitimate commercial messages such as a publisher contacting an author or a consultant submitting an unsolicited resume via e-mail. Finally, relying too much on a legal approach is just silly when an ever-increasing percentage of spam comes from overseas.

Fighting back against spammers
Still, that doesn't mean that we have to tolerate spammers. The Internet community can try to devise ways to raise spammers' costs, such as charging correspondents to send you e-mail. We can also report spammers to their network providers and follow up to see what happens.

Last week, I received unsolicited bulk e-mail from Vault.com, a career information site and an unapologetic spammer. The company sent me a survey and then defended its unsolicited bulk e-mail marketing. "The real definition of spam is if a company wants to market a product," a Vault representative said. "We are not marketing a product--we are asking employees to participate in our surveys." My e-mail address was collected "through various Internet search engines," the representative claimed.

Vault receives Internet connectivity through Globix.net, a New York hosting company whose acceptable use policy prohibits "using an e-mail account on or through the Globix network to send spam." To the company's great credit, a Globix administrator told me on Friday that "Vault.com ceased all e-mail operations today. There will be a meeting involving the Vault CEO, their Globix account rep, and the Globix abuse team on Monday. There was also a failure in our tracking process, which should have put a stop to this much sooner; that is being addressed as a separate issue." Jim Schroeder, deputy general counsel of Globix, phoned me to say a network provider has to terminate spammers: "Otherwise, you have no credibility."

Wientzen, the DMA's president, used a dodge similar to Vault's during his interview last week on CBS News. "The reality is that, in spite of all the trouble that e-mail is causing, Americans and people all over the world--in fact a lot of people--do respond to e-mail offers, and they often respond to offers for things they didn't even know existed, from people they didn't know existed," Wientzen said.

If Wientzen really believes that, I invite him to publish his personal home and work e-mail addresses, and to list his home phone and cellular phone numbers on the DMA's Web site. Anyone want to bet that he'll put his privacy where his mouth is?