Report from FTC Spam Conference

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Cindy Cohn <Cindy () eff org>
Date: Mon, 05 May 2003 18:34:40 -0700
To: Dave Farber <dave () farber net>
Subject: Re: Report from FTC Spam Conference

  Hi Dave,

You asked for a report on the FTC conference last week.

I participated on a panel on Blacklists and announced EFF's efforts to work
with noncommercial e-mail mailing lists to develop a set of principles and
best practices for listowners, ISPs and various anti-spam forces including
blacklists (they apparently prefer the term "blocklists," but I'll stick
with the term that was used by the FTC) aimed to ensure that noncommercial
e-mail lists aren't snared by anti-spam measures.  I mentioned that you had
told me that you operated the first e-mail list and that you experienced
ongoing problems with delivery of the IP List.

  I made several points, but the basic gist was:

  1.  I'm here because EFF was approached by a subscriber to a large e-mail
list, Moveon.org, who was having trouble receiving wanted e-mails from
them.  I asked Moveon.org about this and learned that it is an ongoing
problem for them.  Since it is also an ongoing problem for EFF with our
newsletter, the EFFector, I decided to conduct an informal survey by
sending a note to the EFFector asking if any other nonprofit e-mail lists
recipients or senders had experienced any problems. I received a large
number of responses, including lists as large as Moveon.org's 2 million
members to those as small as a Berkeley High School parents' list.

I concluded that when e-mail becomes unavailable as a tool for broad
political organizing and informal mailing lists, we've broken something
fundamental and it's time to try to fix it.

2. At the same time, I'm sympathetic to what many in the anti-spam movement
are trying to do. Most of them care deeply about the health of the Internet
and are sincerely trying to do the right thing. EFF is very supportive of
tools that give users the ability to filter and control their mail. We're
supportive of tools used by ISPs that don't tread into censorship.
Personally I care about this issue too. Before joining EFF I sued a spammer
and won a $65,000 settlement based upon California and federal false
advertising, anti-hacking and unfair business practices law, so I am
supportive of litigation where appropriate (BTW, the spammer paid every
penny).  It seems that many of the problems arise when a third party, be it
your ISP or some entity used by your ISP, tries to determine which of your
mail you want to receive and which you do not.

3.  In trying to figure out how to approach this, I started with thinking
about what the analysis  would be if the government was deciding which of
your mail you received and which you did not.  From that perspective, the
problems become are easy to see and  articulate.
          a.  Lack of transparency.  It was telling that none of the
Blacklists on the panel would reveal which ISPs use them and only one ISP
in the audience spoke up that he used a Blacklists.
          b.  Overbreadth -- the techniques block more than just spam.  The
worst problem here, after just plain errors in anti-spam tools, is the
blocking of other customers of an ISP because one of the customers is
accused of spamming.
          c.  Lack of due process for those accused of spamming.  Few
anti-spam measures give any warning beforehand and there seems to be a
general failure to respond quickly to mistakes.
          d.  Misuse of anti-spam processes for non-spam related purposes.
I mentioned Moveon.org's suspicion that their messages are being marked as
spam by those who disagree with their political message and the
well-publicized incidents of anti-spam folks blocking each other due to
competitive and personal disputes.
          e.  "Whack a mole" problem. The current situation has an
everchanging number of individuals and groups acting as
decisionmakers.  This has happened to EFF many times -- we just get removed
from the Razor database to learn that somehow we've ended up on someone
else's bad list. It often takes serious investigative time even to figure
out who has blocked us, much less why (see transparency, above). This
situation makes it very difficult for small listowners.

I concluded that if this was a case against the government for delivery of
regular mail, it would be a slam dunk.

Now obviously there are important differences when the entities doing the
filtering are private, not governmental, but having considered the issue
from that perspective, I believe that the long history of law developed
around governmental censorship can aid us in looking at where the current
systems are going wrong and what they could do to make things better.

We're hoping to have the principles ready for prime time within a month or
so.

  Cindy


************************************************
Cindy A. Cohn                   Cindy () eff org
Legal Director                    www.eff.org
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
Tel:  (415)436-9333 x 108
Fax: (415) 436-9993







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