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Marketers' View of the Do-Not-Spam List

Jerry Cerasale
Chief Lobbyist for the Direct Marketing Association
Wednesday, June 16, 2004; 11:00 AM

The Federal Trade Commission on Tuesday said that Congress should not create a national do-not-spam list.

Jerry Cerasale, chief lobbyist for the Direct Marketing Association, discussed his group's opposition to the list. Cerasale and washingtonpost.com reporter David McGuire were online on Wednesday, June 16, at 11 a.m.

Direct Marketing Assn's Jerry Cerasale (Courtesy DMA)

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A transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.


David McGuire: Hi Jerry, thanks so much for joining us today. The DMA won a victory yesterday when the Federal Trade Commission said it wouldn't create a do-not-spam registry. What was it about the registry was the most problematic in your eyes? And do you agree with the FTC's call for improved authentication technology?

Jerry Cerasale: The biggest problem with the do-not-spam registry is that it wouldn't work: it would not stop spam.

Furthermore, we feared that it would give marketers a black eye, because consumers would sign up on the registry and continue to get inundated with spam. Meanwhile all marketers would take the blame.

Regarding authentication - we support the FTC 100 percent when it comes to the need for authentication. The DMA is a big supporter of law enforcement as a critical tool in the battle against spam, and authentication will be a big help for that.

In fact, The DMA has helped fund and support an anti-spam law-enforcement initiative in cooperation with the National White Collar Crime Center and the FBI called 'Operation Slam Spam,' and authentication would be a tremendous help for that effort to bring about criminal prosecutions against spammers. Authentication will help with enforcement for the CAN SPAM Act and fraud laws.


Parkville, Md.: Mr. Cerasale I oppose creation of the do-not spam list for the same reason the government has chosen not to create it: it is indisputably clear that rogue telemarketers would use that list to -gather- new email addresses rather than abide by its restrictions. That said, if there were a technologically feasible way to create a workable "do not spam" list, I would be 100% for the creation of such a list (and I think the technology will arrive in the near future). I ask you: why should I be forced to wade through 100 spam e-mails every day just to find the 4 or 5 e-mails I may have gotten from friends or acquaintances?

Jerry Cerasale: In combatting spam, we have to take it one step at a time. Right now, a do-not-email list would not be effective. The key here is to find the individuals who are sending the spam and use current strong laws to find and prosecute them.

As FTC Chairman Muris pointed out yesterday, if we can get to authentication (which would significantly enhance the effectiveness of enforcement of current laws and increase the effectiveness of ISP filtering), that could very likely obviate the need for a do-not-email registry.

It is important to keep in mind that upwards of 90 percent of unsolicited e-mail is sent via criminal means such as open proxies or open relays.

We agree that having to sort through all that e-mail is a huge problem - for consumers as well as legitimate marketers. Even our members' specifically requested e-mail, such as bill-payment and airline travel confirmations are getting lost in the shuffle.


Greenbelt, Md.: The DMA and other legitimate marketing groups have said repeatedly that they need to separate and distinguish themselves from the rogue spammers. Doesn't the Do Not E-mail list accomplish just that? The honest marketers will sign up and the spammers will not, thereby creating a very clear distinction between the good guys and bad guys.

Jerry Cerasale: There are already strong laws in place that distinguish between legitimate marketers and spammers. The key is strong and visible of those laws.

It is the law that every commercial e-mail must contain a valid and functional 'remove me' option. It's the law that every commercial e-mail must be clearly identifiable and contain a valid postal address. And keep in mind that a lot of spammers are already violating long-standing fraud laws. One obstacle to enforcing these laws is the anonymity of the spammers. That's why we support the FTC's call for industry to adopt authentication.


Arlington, Va.: I see estimates that spam makes up 70, 80 or 90 percent of all e-mails. With people becoming so frustrated, are your members starting to shy away from the medium?

Jerry Cerasale: The short answer is 'Yes' - some members are not using e-mail as much as they could.

The success of e-mail marketing could reduce costs for marketers and these savings could be passed on to consumers. But the frustration with spam is a roadblock to that.

Our studies have shown that legitimate commercial e-mails drove more than $33 billion dollars worth of sales in 2003, and we think that e-mail can generate even more for the entire U.S. economy once we get spam out of the picture.


Detroit: There ought to be a cost to distributors of spam. If people had to pay a fraction of a cent for each email they sent, individual people would not have a significant increase in their overall cost to use the internet. However, it would make distributors of mass e-mailings think twice about doing so.

Jerry Cerasale: There are many proposals out there and several companies are looking at offering that type of service.

The DMA is open and willing to look at those. But the major problem with that type of service is that unlike the telephone and unlike the U.S. mail, Internet service providers are not required by law to deliver the message -- they are not common carriers under the laws of the United States.

If senders of e-mail are required to pay to send each message, there must be a corresponding requirement to deliver that message.

Changing American laws to force ISPs to become common carriers will not happen in my lifetime.

The DMA thinks there might be other proposals to look into, such as registering senders of commercial e-mail and requiring some sort of registration fee. This idea and others are being considered in industry circles.


Alexandria, Va.: It seems that most of your members are legitimate retailers that sell household wares with which we are all familiar. It also seems that spammers are either scam artists, off-shore drug peddlers or worse. Why not take the moral high ground and support a do-not-spam registry for your members?

Jerry Cerasale: Since long before the CAN SPAM Act, our members have been required to maintain their own do-not-email lists. They follow the CAN SPAM Act and if you ask them not to e-mail you anymore they wont.

The problem is that if Americans sign up for a do-not-email list, they'll expect it to work as well as the do-not-call list works, and that's simply not going to happen. The fear is that the majority of Americans wont distinguish between legitimate and illegitimate marketers.


Annandale, Va.: What do you think of the current efforts by companies like Microsoft and others to help eliminate spam by trying to verify the sender's address? Is this going to fix the spam problem?

Jerry Cerasale: We are delighted that major ISPS and technology are working hard on developing an authentication protocol. We hope that this new FTC report will speed up the process.

Like I said before, if we can find the bad guys and prosecute them publicly, that can become a significant deterrent to spammers and thus significantly reduce the spam problem.


Wheaton, Md.: You use the term "legitimate marketers" to describe yourself. Other than you having a marketing company, what makes you any different than the person out there who "markets" his legitimate product or service using his own resources rather than paying you? Why is your Spam any more legitimate than any other Spam I might receive, legal or illegal?

Jerry Cerasale: To be clear, I work for the Direct Marketing Association. We represent marketers, but are not a marketing company.


Why fight against our freedom to file individual lawsuits? : One area where your organization lacks credibility is your lobbying against individuals having the power to individually sue spammers. If your companies genuinely comply with laws they have nothing to fear from individuals going after the spammers that steal their bandwidth, storage, and valuable time.

Jerry Cerasale: The state of Utah had a law that allowed individuals to sue spammers. More than one-third of those cases were dismissed because the wrong individuals or companies were sued. Subsequently Utah rescinded that law.

Utah's law had resulted in great expenses for marketers and individuals who were totally innocent but had to defend themselves anyway.

Individual right of action would create a whole new set of victims of spam: individuals who were wrongly sued because spammers made it appear that the spam was coming from their individual e-mail accounts.

One of the most popular criminal methods used by spammers is to hijack innocent peoples personal computers and turn them into spam-sending 'zombies.'


19th and Eye - Washington, D.C.: I understand your concern about protecting the ability of marketers to send email advertisements to those who opt in to promotions. But the VAST majority of Americans who receive email from "legitimate" sources (as opposed to the porn and "get rich quick" junk) still receive it because corporations buy and sell databases constantly, often with limited notice to the consumer (tiny print in a scroll down bar or link that requires you to un-check a box to opt out). I am sick of spam, and have started to receive it on personal accounts that are NEVER used in public. How do you propose that those who do not want ANY spam can be protected from the unwanted mail, whether from a legit source or not? As an industry leader, I feel it is partially your obligation to help solve this problem.

Jerry Cerasale: One of the cornerstones of membership in The DMA is that consumers should have notice and choice about their ability to receive or not to receive advertisements.

DMA members don't exchange e-mail addresses if a consumer exercises that choice.

But in order to enforce any choice, you have to know who sent the message, which is why e-mail authentication is the real key here.

In Europe, where the law requires that consumers 'opt-in' to receive commercial e-mail, those laws have been totally ineffective at reducing spam, because the Europeans can't find who sent the e-mail! All this highlights the need for authentication.


Goose Ridge, Ore.: You've talked about the negative financial impact a do-not-spam list would have on your members, but what about the impact of 1,000 versions of viagra spam clogging my inbox. I'm very unlikely to buy ANYTHING by e-mail, cause so much of it is fraudulent garbage. Doesn't that attitude hurt your member companies? Shouldn't you guys be out ahead of the spam fight?

Jerry Cerasale: Our members are being significantly hurt because of spam exactly because of your reaction.

Thats why The DMA has become a leader in the fight against spam. Among other things, we've put our money where our mouth is and are devoting significant funds and resources to bring about criminal cases against spammers via 'Operation Slam Spam.'


Arlington, Va.: I understand your concerns about why a "do not spam" list could be confusing and may not solve the problem, but wouldn't it be better to have some way to let marketers know who does or doesn't want their junk email? It may not be SPAM but it is still unwanted email cluttering up my mailbox. I try not to do business with companies that send me unsolicited email so it behooves them not to annoy potential customers. Is there an alternative way to stop unsolicited marketing emails?

Jerry Cerasale: The CAN SPAM Act provides a way for that because it requires that every commercial e-mail contains an Internet-based mechanism where a consumer can request not to receive any more e-mail. Our members and other legitimate marketers do and will oblige those requests.

The problem is that there are a lot of bad actors out there operating without regard for any laws, including the CAN SPAM Act.

We share your frustration there, but we believe that there are reasons to be optimistic: there is a concerted effort going on amongst lawmakers, law-enforcement officials, private-sector partnerships and others to attack the spam problem on a variety of fronts and we have reason to believe that these efforts are already beginning to bear fruit.

The FTC's push towards authentication will be a huge help.


Mills River, N.C.: Anyone can send email to your inbox at any time, when the internet was created that was fine since it was only universities and government employees. Today we need a more closed system so the user can chose who they get email from. That way if I want marketing materials about BBQ's or airline tickets I need a way to get that email. Once I have the information then I can turn off the flow. What are your thoughts?

Jerry Cerasale: We agree that the consumer should have choice, that they can say 'no' to receiving further e-mail.

Your question seems to go beyond just marketing messages, my personal belief is that an open-Internet and open-e-mail allows Americans and people in all other countries to have the freedom to receive messages unencumbered. And that is part of my essential belief in freedom. We have to be careful regulating the Internet so we don't kill that freedom.


David McGuire: Unfortunately, we're out of time. I'd like to thank Jerry Cerasale for taking the time to be with us today and our viewers for asking so many thoughtful questions.


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