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  Article by Ed Foster

Arrested Customer Communications

It's getting harder and harder for businesses to communicate with their customers via e-mail. If the spammers themselves don't stop them, the measures users take to keep the spam under control very likely will. And, as one reader recently opined, when those measures include white-list vendor Spam Arrest, businesses also have to worry about their legal liability for contacting their own customers.

"A significant portion of both our orders and tech support questions are received through our e-store and by e-mail," wrote the reader, who is the president of a small software development company. "Our auto-responders and our tech support replies are not delivered to a few of our customers because they have been intercepted by Spam Arrest. Customers do not think to put our domain name on their "friends" list. Let me say that we never sell or rent our e-mail list, nor do we send out anything that even feels like spam. We send out upgrade notices. Once in two years we might send out a general commercial e-mail on our products, including an introduction of a new product."

The problem the reader encountered with Spam Arrest is one we've noted before: the intimidating terms it requires senders to accept in order to deliver the message to its intended Spam Arrest-using recipient. The terms of the Spam Arrest sender agreement remain virtually identical to those we saw over a year ago, still mandating a penalty of $2,000 for current and future messages that Spam Arrest deems unsolicited commercial e-mail. That's annoying enough if you're sending a message to a friend, but for a small businessperson like the reader it presents what he considers an unacceptable risk.

After all, the e-mail he wants to send his customers is commercial in nature, and it could appear to Spam Arrest to be unsolicited. "We have hundreds of thousands of customers," the reader wrote. "It is not practical to try and get all of them to give us specific authorization each times we want to send them upgrade notices. Further, if we were to start collecting the customer pre-approvals that Spam Arrest insists on, it could take more than ten years before we would be willing to drop customers who have not agreed to accept e-mail from us."

Since the reader doesn't know or want to know Spam Arrest, he sees no reason why he should have to trust them not to use their penalty terms to generate revenue in the future. "We cannot accept the Spam Arrest contract because we could be penalized thousands of dollars every time we notify our customers about a new version of our software. Theoretically they could save up our violations and hit us with a big charge of a hundred thousand dollars or more after a year or two with no warning that we were accruing a massive liability. If we send out a mass e-mail announcing an upgrade to 100,000 customers and 1 percent of them use Spam Arrest, and if we had validated the Spam Arrest agreement for those customers, we would have a $2,000,000 penalty on one mailing."

While the reader isn't worrying about the reference to the Can Spam Act in Spam Arrest's terms, it appears to him their definition of a violation goes beyond the law. "We won't be violating the Can Spam Act, because it allows us to send e-mail to our own customers. Spam Arrest does NOT allow us to send e-mail to our own customers without prior authorization. We cannot now go back and get hundreds of thousands of customer to give us pre-authorization. And the Spam Arrest contract requires that the customer "expressly consented to receive the message" rather than just requiring that we have customer consent to receive messages from us. How can the customer expressly consent to receive some particular message in the future? So basically it prohibits all commercial e-mail, not just what is defined as spam in law. Has anyone else objected to this abusive attempt by Spam Arrest to make new law and a gigantic profit at the same time?"

Yes, as a matter of fact, Spam Arrest is the only third party white-list vendor that I ever receive gripes about, and it's now always due to its very objectionable sender agreement. It's hard to understand why Spam Arrest believes such overreaching terms are necessary in its business unless it does plan an SCO-like move into litigation as a main source of revenue. Let's just hope that eventually its customers realize that they need to choose between doing business with Spam Arrest and doing business via e-mail with anyone else.

Got a beef of your own about how companies communicate with customers? Call my voice mail at 1 888 875-7916, or write me at Foster@gripe2ed.com and make your voice heard on the Gripe Line. [Ed Foster died in 2008. He was a columnist for Infoworld and had been a consumer advocate for many years. Click on link below for information on Ed.]

Posted by Ed Foster on January 5, 2007 12:25 AM