For newsletter editors, the war against spam -- and spam filters -- must be fought on several fronts. One promising approach is to send out certified,
"confirmed opt-in" e-mail, identified by a trusted third party warranty mark in the e-mail header. When spam filters spot the certification in the header, they give the e-mail message the benefit of the doubt rather than marking it as spam.
A Head Start
The leader in this approach is a new company, Habeas, Inc. Previously, CEO Anne Mitchell served as legal counsel for Mail Abuse Prevention System (www.mail-abuse.org), a leading spam blacklisting organization, so her anti-spam credentials are impeccable and she has lots of contacts in the spam filter community. In Summer 2002, she was brought on board to run Habeas, providing a way to indicate to ISPs, spam filters, and recipients that specific e-mail messages are indeed confirmed opt-in, rather than merely spam claiming to be permission-based. Already, Habeas headers are recognized by a growing number of spam filters and Internet Service Providers, including America Online, Yahoo, SpamAssassin, SpamCop SpamBouncer, JunkSpy, MessageLabs, and JunkFilter. Some of these filters automatically "whitelist" e-mail containing Habeas headers or are on the Habeas Users List (a list of IP addresses of Habeas users). Others give messages bearing Habeas headers substantial credit in a spam scoring system.
Fighting Spam with Poetry -- a Legal Strategy
But won't spammers just copy the header lines into their own spam messages? No.
Habeas' legal strategy is unique, using Haiku poetry for two reasons -- (1) it attracts great press attention ("fights spam with
poetry") and (2) is legally eligible for copyright protection. Here's what the header looks like:
X-Habeas-SWE-1: winter into spring
X-Habeas-SWE-2: brightly anticipated
X-Habeas-SWE-3: like Habeas SWE (tm)
X-Habeas-SWE-4: Copyright 2002 Habeas (tm)
X-Habeas-SWE-5: Sender Warranted Email (SWE) (tm). The sender of this
X-Habeas-SWE-6: email in exchange for a license for this Habeas
X-Habeas-SWE-7: warrant mark warrants that this is a Habeas Compliant
X-Habeas-SWE-8: Message (HCM) and not spam. Please report use of this
X-Habeas-SWE-9: mark in spam to <http://www.habeas.com/report/>.
Titles and phrases can be protected by trademark law, but are too short to be considered literary works under copyright law. But poetry is protected, thus Habeas has copyrighted its three-line Haiku poem -- short enough to appear in an e-mail header. The Habeas trademark will soon be registered with the US Patent and Trademark Office. Thus, any spammer seeking to counterfeit the Habeas header can be sued for big dollars for both copyright and trademark violation -- a powerful motivator for Habeas to aggressively protect its intellectual property in court and for spammers to stay away.
Confirm Opt-In E-Mail Only is Eligible
To use the Habeas headers you must apply for a license and warrant that you will only use the header on e-mail messages that are confirmed opt-in (sometimes called "double opt-in"). "Habeas Compliant Message" applies to any email for which any of the following is true:
The sender has the verified permission of each and every addressee.
The sender and each and every address are all individuals who share a preexisting, professional (as opposed to merchant-consumer) relationship, and the email is relevant to that professional relationship.
Each and every addressee is a personal friend or family member of the sender, the email is not equally applicable to many other potential recipients, and the email is not commercial.
The email is sent to a single addressee.
For online businesses, statement one applies. Habeas defines "verified permission" in this way: that "the addressee has confirmed their desire and permission to have their e-mail address placed on a mailing list...." and requires confirmation of that subscription, by either (1) replying to an e-mail or (2) clicking on a URL in a subscription confirmation e-mail. Additionally, proof of this must be demonstrated by the confirmation e-mail itself or logs that include "a unique token generated by the operator" such as a date and an IP address. You can read the fine print the Habeas License Agreement and in their FAQ (http://www.habeas.com/faq/index.htm).
If part of your list is Habeas-compliant, and another part is not, that's okay. You send compliant e-mail with the Habeas header and the non-compliant e-mail with a link allowing the subscriber to confirm his subscription immediately. Thus gradually your entire active list will become compliant. After a year or so, drop those who haven't confirmed their subscriptions -- they obviously don't read or care about your e-mails anyway.
Pricing
The Habeas license is priced to be affordable by most who might desire one. Currently,
Individual and ISP licenses are free.
Business license, $200 per year.
Bulk Commercial Mail license, from ½¢ to 1¢ per message, up to a maximum of $3,000 per month, designed for those who send commercial or promotional mailings for themselves or others. Small businesses under $100,000 annual business revenue can qualify for the Business license.
The $200 per year Business license seems reasonable, but I think the Bulk Commerce Mail license is too pricey and the $100,000 ceiling for a small business exception too low. Fortunately, Habeas is willing to work on pricing with businesses that fall between the cracks somewhere, so be sure to ask them about this.
My Recommendation
Spam filters are getting better, but they still flag as spam too many false positives. Federal regulations (though we need them) may be too little, too late to do much good. I believe Habeas is an answer for businesses that are willing to go to the trouble of getting confirmed opt-in permission from their subscribers. It has a sturdy economic and legal basis, rapidly growing acceptance (including AOL and SpamAssassin), a strong anti-spam policy, as well as the legal ability and economic motivation to enforce its credibility as a trusted third-party organization.
Currently, several companies are licensed to include Habeas headers in their or their clients' qualifying messages: Whitehat, Topica Email Publisher, LockerGnome, MSNTV, and Harris Interactive. Add Wilson Internet Services to that list.
I decided to put my money where my mouth is and purchased a Habeas license. I already use the Habeas headers to send out my paid Web Commerce Today newsletter. For this I use Gammadyne Mailer (www.wilsonweb.com/afd/gammadyne.htm), which allows you to insert special headers. I expect that I'll be able to insert Habeas headers using my current listserver software within a few months. In the meantime, I am aggressively working to get opt-in confirmation from a greater percentage of the subscribers to my current publications, and all new subscribers must confirm their subscription.
If you publish an e-mail newsletter, I recommend that you switch now to confirmed opt-in (or "double opt-in") as your subscription method. If it isn't required at the moment, I expect that the advantages of having a confirmed opt-in list will only grow in months to come. See if your listserver ASP or software supports the Habeas header; if they don't, request it. Then consider purchasing a Habeas license to help get your e-mails through to all your subscribers.
