Live from the FTC Spam Forum: Blacklists Defend Their Methods

(Direct Newsline) With the memory still fresh of an e-mail blacklist company being served with legal papers, three blacklist executives were run through the gauntlet yesterday at the Federal Trade Commission Spam Forum.

“Blacklists stop legitimate e-mail that people have signed up for,” said J. Trevor Hughes, executive director of the Network Advertising Initiative, a coalition of e-mail service providers. “It’s not just marketing messages, it’s paid newsletters, bank statements, and airline confirmations.” Hughes was referring to the “false positive” problem in which e-mail that was requested is incorrectly identified as spam and dropped in a black hole before it reaches the recipient.

But the blacklist advocates disagreed.

“False positives are a fraction of any spam blacklist,” said Alan Murphy, a former employee for Mail Abuse Prevention Systems, who described himself as a volunteer investigator for Spamhaus.org, a blacklist group.

As evidence, Murphy pointed out that NortelNetworks, which uses Spamhaus’s blacklisting service, had 1.9 million e-mails coming into its corporation in March. Of those, 85,000 were blocked as spam. Fifty-two of the 85,000 had been white-listed as okay to mail, and 46 of them were from an IP address in China that Spamhaus had been watching as a spam nexis. (Spamhaus along with anonymous group Spam Prevention Early Warning were the two companies named in the legal papers.)

“What’s the false-positive rate when you block the host’s corporate mail server?” asked Scott Richter, president of e-mail service provider Optinrealbig.com. who claimed his servers had ended up on blacklists, resulting in his inability to send out e-mail.

“Very low,” Murphy replied.

“Some people can’t be a judge and a jury,” Richter retorted.

There are several First Amendment issues with blacklists, said attorney Cindy Cohn, legal director of the Electronic Frontier Foundation, which helps nonprofits and other groups with their e-mail not being delivered because it is mislabeled as spam. She listed the issues as lack of transparency, lack of due process, lack of accountability, and misuse of blacklists. “They would be very easy for me to win,” she said.

“There is a balancing act between property rights and First Amendment rights,” countered Margie Arbon, director of operations for the Mail Abuse Prevention System (MAPS), referring to Internet service providers’ property right over their e-mail bandwidth.

But Richter argued that it’s hard to discover who to complain to at the blacklisting groups. A third blacklist, SpamCop, automatically puts IP numbers (where e-mail is sent from) on its blacklist in response to a complaint.

“How do you know if the complaints are true?” Richter asked Julian Haight of SpamCop.

“When we receive a complaint about you, we at least know you got an e-mail,” Haight replied. “If they are getting bounced by me, they receive a URL in an e-mail about where they can go for more information.”

The ISPs, Arbon pointed out, subscribe to the blacklists to keep spam from their members. Her group, MAPS, blacklists after a nomination process and after it has contacted the company they are about to blacklist.

“You can always go to your ISPs and ask them to remove you from the blacklist,” Arbon added.

FTC moderator Brian Husemen then asked the panel, “Which ISPs subscribe to your blacklist?”

But he didn’t get an answer because the ISPs would rather keep it quiet, the panelists said. “They are afraid they’ll get sued,” Arbon admitted.

The e-mail service providers “have had a terrible time” with blacklists, Hughes said. “There are blacklists that are not accountable. The lack of due process is very real and is related to accountability and transparency.”

Cohn added, “I’m concerned about private and anonymous entities deciding which e-mail gets through.”

But Haight countered, “How is this different from a restaurant reviewer saying, Don’t eat at Joe’s?”

“The reviewer doesn’t block the whole street,” Richter shot back.

“If you realize you are blocking people’s speech, then you will perhaps see you have a moral obligation to think about what you are doing before you block,” Cohn said, in an impassioned tone.

Equally impassioned, Haight replied, “These filtering techniques are the last thing keeping the Internet from extinction.”

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