Spam and a Case of Dyspepsia
Marketers and Blacklisters Face Off at FTC's E-Mail Forum



Fisticuffs nearly came on Day 2 of the Federal Trade Commission's bare-knuckle forum on spam this week.

In what FTC Chairman Timothy Muris called "this historic event," all the main combatants of the spam wars came together for the first time to hash out how best to curb today's onslaught of unsolicited e-mail ads.

Close to 400 bureaucrats and lawmakers, consumers, lawyers, Internet service providers, techies and, most perilously, anti-spam activists and spammers sat side by side over three days in the close quarters of the FTC's new conference center near Capitol Hill.

But it was the session on "blacklists" that was the zenith of bad chemistry. Blacklisters are online vigilantes who fight junk e-mails with techie guerrilla tactics, such as posting lists of spammers for people and companies to use to set up blocks. Spammers are the online advertisers who fill in boxes with annoying messages peddling cheap mortgages, vacations and breast enlargement creams. Blacklisters loathe spammers for damaging the Internet; spammers detest blacklisters for hurting their business.

Tensions escalated during questions from the audience. Florida lawyer Mark Felstein, director of the pro-spam EMarketersAmerica.org, confronted panelist Alan Murphy of the blacklist Spamhaus, angrily arguing that blacklists sometimes hurt innocent marketers. Most of the audience didn't know Felstein had named Murphy as one of the several defendants in a lawsuit he filed against anti-spammers and blacklists a couple weeks ago. Another defendant, Adam Brower, sat irritated nearby.

When the session ended, Felstein and Brower headed for each other. By chance, FTC Commissioner Orson Swindle, racing toward the door for lunch, stepped between them.

"They both bumped up against me and were jabbing at each other, and one started saying, 'He assaulted me,' " recounted the grandfatherly Swindle, a former Marine Corps aviator and Vietnam War POW who towered over the two.

Swindle (pronounced Swin-DELL) told the scufflers to take a deep breath, then added, "If you want to see assault, I can show you."

What had initiated this forum to begin with had been Swindle's suggestion to Muris that they put all the people involved in the nation's spam brouhaha in one room and keep them there until they solved the problem. "After the third day, I'm amazed anybody's still alive," he quipped before yesterday's session on anti-spam legislation.

Defining spam isn't as easy as you think. Sure, you know it when you see it in your in box (well, usually). But as a legal issue, defining what should be prohibited gets contentious and complex, rife with free-market arguments and constitutional rights.

Boos and hisses filled the room 35 minutes into the forum's very first panel session. Robert Wientzen, president of the Direct Marketing Association, whose membership includes commercial e-mailers, drew the audience's ire by arguing that unsolicited commercial e-mails aren't spam unless they are deceptive and fraudulent.

"We did a study this past Monday and 37 percent of the folks we talked to said they had bought something as a result of receiving some e-mail," reported Wientzen. "Everybody doesn't hate all e-mail."

Joe Barrett of America Online argued that "ultimately the decider of what spam is is the person who receives it."

Panelist Laura Atkins is president of the nonprofit SpamCon Foundation, which works to protect e-mail as a communications and commercial medium by supporting measures to reduce the volume of unsolicited e-mail. She said that while some Internet service providers define spam by what their clientele doesn't want to receive, a workable definition for identifying and prohibiting span should be more concrete.

"We define it as unsolicited and bulk," she said. Uninvited by recipients. Sent in mass amounts. Simple. Seemingly.

Eileen Harrington likes to mention that there's a genre of spam named after her in law enforcement circles. It's called "Eileen spam."

About four years ago, Harrington, associate director for marketing practices in the FTC's Bureau of Consumer Protection, started getting e-mails asking whether several chain-letters making the spam rounds were legal. Their text informed recipients that the FTC's marketing practices expert vouched for the scheme's legitimacy.

Um, not so.

"That person is me," said Harrington, the FTC's point person in fighting fraud. "I laughed for about a minute and then went after them. It really demonstrates the ease with which anybody can send spam and say anything in it."

Much of the forum's discussion of spam deception referred to the FTC's survey, announced Tuesday, called "False Claims in Spam." Based on the 130,000 spams consumers forward to the FTC daily and on commission spam dragnets, the survey found that two-thirds of spam are in some way false -- whether in misleading "subject" lines, forged "from" lines, or deceptive text.

Outside the conference center, Jim Ferguson took a break for a smoke on a sunny bench along New Jersey Avenue NW. He was the only person at the forum wearing Spam-branded clothes -- a blue-and-yellow baseball cap with "Spam" on the front the first day, a dark blue Spam cap the second. He has plenty more at home -- shirts, caps, ties, a bowling shirt, even a football.

"Spam is actually a legitimate Hormel product," said Ferguson, emphasizing the word "legitimate" to differentiate the infamous canned meat from the infamous e-mail blight. His caps and clothes, actually from Hormel, were given to him by employees at Social & Scientific Systems, the Silver Spring research company where he works, because they are grateful for his slamming the spam from their in boxes every day.

"They know I'm very passionate about crushing spam," said Ferguson, who has run the research company's corporate mail servers for nearly four years.

From September 2002 to March, spam to his corporate users rose from an average of 56.4 per person per day to 84.5. "We're being pounded," he said.

Close by, near the corner hot dog stand, one of the e-mail entrepreneurs was carrying on a conversation. Ferguson said he knew the guy from the underhanded tricks he has used to get past his spam filters. "They're slime bags," he said when told that the e-mailer professed to running an aboveboard commercial e-mailing business. "They all say they're businessmen. Rule No. 1: Spammers lie."

Spam is a bad word. None of the e-mail entrepreneurs at the forum calls him- or herself a spammer.

"I consider myself a direct online marketer," said Laura Betterly, president of Data Resource Consulting, whose front-page Wall Street Journal profile last November dubbed her "Spam Queen" -- a tag she attributes to an out-of-context quote.

Scott Richter, president of Optinrealbig.com, said he's not a spammer, but added that there had been some at the forum until the audience "chased them away."

William Waggoner -- who sends out 15 million to 16 million e-mails a day for clients offering PlayStation giveaways, low-rate mortgages, life insurance, vacation packages and penis enlargement pills -- said he is in "the e-mail marketing business."

Are you a spammer? "No," he said. "I consider spam an unethical way of marketing. . . . I'm not going to sell a product that's a scam."

His hair pulled tight in a ponytail, his sunglasses small, dark ovals, and wearing a dark suit and red tie, he looks like a "Miami Vice" extra. But Waggoner, who runs AAW Marketing out of Las Vegas and has seven employees, said he doesn't send out casino or porn e-mails. But he does send both unsolicited and solicited e-mail.

"Unsolicited e-mail of any kind isn't the problem," he said. "The problem is people who fail to follow any guidelines, people who hide, people who lie and steal."

Yet he said he is attacked as a spammer online "every single day" by anti-spammers, though he's a "very, very small player."

Why attend the forum? "I figured because I would like to express myself about being in the business," he said. "I don't want anybody to speak for me. There's a lot of idiots in this business."

Already there's jumping on the "spamwagon" that four months of planning this forum put into motion. This week, America Online, Microsoft and Yahoo announced they are going to collaborate in tracking down spammers. AOL announced in mid-April that it was filing five lawsuits against notorious spammers, and it upgraded its spam-blocking system.

In Congress, the Burns-Wyden "Can-Spam" bill has been reintroduced after gaining little support previously. And two new spam bills will be introduced next week -- one that would create a Do Not Spam list similar to the FTC's telemarketing opt-out list that goes into effect this summer, and the other that would pay a bounty to consumers who nabbed illegal spammers in the act.

"No single law, no new single technology, are going to solve this problem," said Swindle. "We are going to solve it by coming together and bumping heads."

 http://www.washingtonpost.com/ac2/wp-dyn/A7525-2003May2?language=printer