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Non-consenting adults and the net

Recently Microsoft took the unprecedented step to limit the number of private messages people can send via Hotmail. Is this about limiting freedom of speech or a move towards consent-based email communication? Brand communication and legal guru Ardi Kolah investigates.

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At first glance, this move by Microsoft could have come straight from the pages of George Orwell's '1984'. Big Brother is watching (or reading) you. The public relations department of course tells a different story. They're trying to protect us from the evil scourge of the 21st century. And it's called spam -- not the variety immortalised by Monty Python -- the stuff you'd rather not digest.

The first point to dispense with is that, yes, Microsoft can force a limitation on the number of emails we can send by Hotmail to a meagre (well, it is for some people I know) 100 a day, down from 500 a day. How it arrived at this figure is anyone's guess but because it is the service provider and even though you signed up for free -- you're not free to do what you like. The reality is that Microsoft pulls the strings. Don't like it, well then use another email host. There's plenty to choose from.

Size of the problem

The doommongers among us are foretelling that spam will exceed "normal" e-mail by July 2003, costs about $9bn a year to deal with (clogging up servers) and there's no end in sight. And somehow by shooting the messenger we get rid of the problem.

I'm not convinced we do.

Like most people in marketing, I already receive a huge number of incoming emails, most of which is work related (sad, I know). And of course I hate receiving junk email -- just like junk direct mail.

Anything that looks vaguely suspicious or frankly hasn't an earthly chance of being read goes straight into the recycle bin, just like the one in there at the moment which reads "Adio Skateshoes as seen in Jackass The Movie". I don't skate and I don't want to see this movie. So who's the Jackass?

Yes, it's a pain I know to delete this stuff and we're constantly exposed to pyramid selling, save the world chain letters, stop the war chain emails and emails containing viruses -- which is more worrying.

Beware of emails that you don't expect to receive, which claim that by sending a message back in the Subject line "Unsubscribe" does the trick. Just like the attempts to kill off Hydra in Jason and the Argonauts this particular email message mutates into formidable "giant spam" with many heads because it recognises you as a real person. And then you're really in for it.

Choice of weapon in the fight against spam?

In the war of words (spam is almost always text), the software industry has created "tools" like filtering software and firewalls in order to keep these rather irritating emails from your in-box. Believe it or not Microsoft claims it uses spam filtering software. Clearly this doesn't work (and yes I could be unkind to our friends in Seattle but I'm not going to) so it thought about limiting the number of emails you can send in the first place.

This smacks of defeatism, doesn't it?

What happens if all you send are junk emails anyway? Doesn't solve the problem, does it? Just get more of your friends to do the same and we're back to square one.

Is government action the answer?

There's talk in the US about consent-based email communication and I understand that the UK government is also investigating this.

Possible components of such a framework may include:

  • Consent Expression Component: This involves recipients expressing a policy that gives consent or non-consent for certain types of communications

  • Policy Enforcement Component: This involves subsystems within the communication system that enforce the policy. The overall framework may involve multiple subsystems within the policy enforcement component. This may involve fail-open or fail-closed approaches. With a fail-open approach, the system must identify messages that do not have consent. For example, this may include approaches that determine the nature of a message based on its characteristics or input from a collaborative filtering system. With a fail-closed approach, the system must identify messages that do have consent and only allow those to be delivered. For example, consent may be expressed by a policy, by a so-called "consent token" within the message, or by some payment that essentially purchases consent or delivery rights.

  • Source Tracking Component: This component provides deterrence to parties that consider violating the policy by facilitating identification and tracking of senders that violate the policy. This may require non-repudiation at the original sender, the sender's ISP, or some other entities involved in the communication system.

  • Some of the above techniques focus on local text classification approaches, as well as involving new network architectures or changes to the existing applications and protocols.

    Forgive me, but the idea that we're going to live in a world where unless I have consent to send you a communication via email I won't be able to do so is sheer madness.

    Where organisations such as the euphemistic sounding Anti-Spam Research Group (ASRG) and Internet Research Task Force (IRTF) get it wrong is that their starting point assumes that email communication should be treated like advertising and promotions -- that you and I should opt-in to receive them.

    Well, it's a lot easier if you don't want to receive offers from Virgin Atlantic and the Carphone Warehouse because they need your permission (opt-in).

    But what about someone that wants to buy your product or service and sends you an email? You don't know them from Adam. So what then?

    The arguments in favour of consent-based communication remind me of the time when TV advertising was under attack for causing subversion and for corrupting young minds. What the critics of TV advertising failed to say then was that we have the ultimate antidote -- don't watch the ad or use the off switch.

    I know that receiving an unwanted email is different -- but the principle's the same.

    A more fundamental issue is the difference between "spam" and "normal" email. Sometimes this isn't always clear although "Do you want a Bigger Dick?" perhaps speaks for itself.

    And in any case, what qualifies the ASRG or IRTF to make such a judgment call? For that matter, one man's email mail is another's junk mail... so this is straying into an area which goes beyond nuisance and becomes a civil rights issue.

    And let's say that the US and the EU bring in legislation outlawing unsolicited emails. How are they going to police it?

    Can the spam be canned? Maybe. Maybe not. I have my doubts that legislation is the answer.

    Is there a solution?

    Education is a first step -- we need to get smarter at how we manage the flow of information -- both in and out of our boxes. We should demand that software suppliers like Microsoft and others start to improve their email products that empower us to communicate -- not disenfranchise us by limiting the amount of email communication we send. After all, if used properly, email is a very powerful marketing tool provided it is done with respect for the individual.

    Second, marketing professionals need to recognise that email marketing isn't a cheap alternative to direct mail or to be treated in the same cavalier way as SMS marketing. We need to get our own house in order and the use of digital signatures that identify the source of the sender in the Subject line will go some way to help.

    Third, no matter what technology can be created and no matter how sophisticated the filter or firewall there's still only one foolproof way of stopping junk email getting through.

    Don't read it. Delete it.

    Don't set your email browser on Preview Pane to open messages automatically as they come through- it's the surest way for your computer to catch a virus. And for you to have opened the door to a Non-Consenting Adult.

    Ardi Kolah is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00). Read the review of the book on Brand Republic and order your copy online here.

    If you have an opinion on this or any other issue raised on Brand Republic, join the debate in the Forum here.

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