Unsolicited Commercial Email

Almost every adult has been notified: "You may already have won Ten Million dollars!" Bulk mail, at a fraction of a penny per unit, has become a fact of life in the United States, and easily accounts for the majority of mail sent through the Postal Service. What is not so well-entrenched and not nearly as well-accepted is the online equivalent: unsolicited commercial email (UCE). Unsolicited commercial email is an electronic mail message, to borrow from the United States legal code on unsolicited commercial faxes:

for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted [by electronic means] to any person, but does not include a message (A) to any person with that person's prior express invitation or permission, (B) to any person with whom the sender has an established business relationship, or (C) by a tax exempt nonprofit organization. (6)

Unsolicited commercial email, called junk email or somewhat incorrectly "spam" by its opponents and bulk email by its advocates, is becoming increasingly more common as the Internet continues to grow in popularity and as business are being to realize the direct marketing potential that virtually free email provides.

Much maligned, UCE has been called an irritating invasion of privacy and a threat to the very nature of the Internet, and many have accused the senders of junk email of offloading the cost of advertising onto the unwilling recipients. Recent litigation involving the connectivity giant America Online has put the future of bulk email in question, and more suits are sure to follow. (3)

On the other hand, its supporters consider the battle to save bulk email as a issue of freedom of speech, and argue that the low cost of bulk email actually improves the economy by allowing small entrepreneurs to advertise to millions at minimal cost. They also claim that commercial advertisements are more desirable than many other forms of email and that they pose no difficulty for those few who do not wish to read them; they may easily be deleted with little more than a keystroke. (8)

Right now the "battle for the soul of the Internet" rages in the courts, and there has been sporadic popular media coverage, though probably due to the continuing net-illiteracy of most Americans, the issue has yet to remain in the spotlight. The debate began, however, and continues to burn most fiercely online: in newsgroups and via email, and on the poor-man's soap box, the World-Wide Web. (1)

Newsgroups such as news.admin.net-abuse.misc and more recently, news.admin.net-abuse.email have become places for angry recipients of junk email or more level-headed system administrators to post the hostnames of those known offenders or to discuss possible solutions to the problem of unsolicited commercial email. However, news.admin.net-abuse recently became the forum for the perhaps longest non-crossposted thread in Usenet history, when one of the Internet's most prolific (and unrepentant) bulk emailers showed up to issue the following challenge. (10)

        From: sanford@cyberpromo.com (Sanford Wallace)
        Subject: Cyber Promotions - here to talk

        Ok Ladies and Gentlemen,

        I've been following a very misinformed newsgroup, and I'm here to speak
        up. If you are truly interested in resolving net-abuse issues, I will be
        more than happy to discuss Cyber's activities with you.  However, I will
        not respond to worthless spewage. I'm all ears.

        Sanford Wallace
        Cyber Promotions, Inc.

This simple post spawned over 2000 replies, over a hundred from Wallace himself. Those members of the net-abuse crowd who were restrained enough tried to make their primary positions clear to Wallace. Their argument was two-fold: that Cyber-Promotions had sent them unsolicited commercial email in the first place was unacceptable. Further, Cyber Promotions had allegedly failed to remove people permanently from its mailing list, despite repeated requests. (2)

The debate mostly centered around the second point, and Wallace was fairly successful in defending his own claim that his automated remove feature was working correctly, and that no one who had sent a remove request to the proper address had received further email. He mostly ignored any discussion about the first position, however, that unsolicited commercial email messages were unacceptable.

Most of the arguments proposed on newsgroups never get much deeper than the belief that UCEs are simply unacceptable, they do not attempt to explain (at least not on the net-abuse groups, where it is assumed that everyone agrees on this basic point). At most, UCEs are called annoying or frustrating, although there seems to be a tacit understanding that this annoyance is due to some violation of privacy and the hassle of having to read through several junk messages a day, trying to filter out which messages are the real ones. The more deliberate nature of the World-Wide Web, however, allows for more depth of discussion. (11)

Perhaps because nothing more is assumed about the average Web-browser than enough net-literacy to be there in the first place, Web pages disseminate more complex arguments, and often attempt to explain why unsolicited commercial email should be considered unacceptable when both bulk "snail mail" and telephone telemarketing are allowed and widespread. Why should the Internet be any different?

One of the strongest (and most common) explanations of the problem with allowing unsolicited commercial email is well-described on John C. Rivard's "Stop Junk Email" page. He essentially compares bulk email to three other forms of direct marketing: regular bulk mail, telemarketing, and commercial faxing. (5)

Regular bulk mail compares very well to bulk email. Both can deliver a text message and are read at the recipient's leisure (unlike telemarketing, which must be dealt with as it comes). Both are extremely cost-effective; bulk mail can be sent for pennies per unit, while commercial email can be sent for less than $ 0.0025 a piece, often nearly one-hundredth the cost of regular mail. These low rates are extremely attractive, since they make even a 1 or 2% response rate profitable. (5,9)

The difference between the two, Rivard asserts, is that unlike junk mail, the recipient must pay to receive email messages (for online charges, etc.) and thus the sender is shifting some of the cost of the advertisement to the recipient, who has no choice but to receive the message. This, he claims, would be analogous to receiving junk mail postage due.

In addition, many point out that the Mail Preference Service division of the Direct Marketing Association (known as DMA) compiles a list of people who do not want junk mail, which bulk mailers often use to filter out uninterested parties (and thus reduce their cost). Although several groups maintain similar lists of email address, they are by-and-large ignored, since removing a hundred or even a thousand names from a bulk emailing list is unlikely to affect the already low cost. (4)

Unsolicited commercial email is also often compared to telemarketing, especially with regard to the "annoyance factor" of both. However, they also differ in two important respects. First and most important, telemarketing is closely regulated by federal law, which requires the maintenance of a "Do Not Call" list. Any telemarketing corporation that fails to abide by the list is fined $500 for each violation.

Secondly, just as in bulk mail, the telemarketer must pay for the sales pitch, and the unwitting recipient pays nothing more than their regular phone bill to receive it (and a bit of irritation). Again, for many of the opponents of unsolicited commercial email, this is a crucial point. (5)

The last comparison which is often made is between bulk email and unsolicited faxes. This comparison is the one most favored by opponents of UCE, and for good reason. Commercial faxes share the most important characteristic of bulk email, its cost to the recipient. "When someone sends an unsolicited commercial fax, it costs the recipient money in terms of fax-machine supplies, time, and the blocking of legitimate faxes."

Although commercial faxes are considerably more expensive for the sender than commercial email messages, the unsolicited financial burden to the recipient is clear enough that junk faxing was made illegal under Title 47 of the US Code, and there are many who would like to see unsolicited commercial email banned as well. (5)

Interestingly enough, before starting Cyber Promotions, Sanford Wallace owned a company that sent unsolicited commercial faxes and is widely considered the cause of the Telecommunications Privacy Act, which was drafted to ban such faxes. One Usenet poster dryly predicted Wallace's answer to his grandchildren if asked what he did:

"I started businesses that people passed Federal laws to protect themselves from." (2)

Finally, those opposed to unsolicited commercial email argue that although it is currently not widespread, if given legal backing, commercial email would shortly grow to swamp all regular mail on the Internet. Given its low cost and the ease of mailing one million users as easily as ten, they predict a day when users receive hundreds of such messages every day, destroying email as a real means of communication. This, they say, would only be inevitable if UCE were allowed to stand on anything more than its current ambiguous legal status, and especially as hundreds of potential "sales" log on for the first time each day and more and more businesses begin to eye the Internet as a untapped global market. (4)

On the other side of the coin, many commercial emailers defend their practice as merely good business, and often (especially Sanford Wallace) see nothing wrong with "direct email". Unfortunately, there are very few sources which attempt to refute some of the allegations and dire predictions of the other side, as most just focus on the results.

From a strictly business standpoint, the results are very impressive. In just over a year, Sanford Wallace turned Cyber Promotions into a "multi-million dollar business" (his own words). Direct email certainly has lower cost than any other form of direct advertising, and claims to "generate more response than any other form of communication." Cyber Promotions quotes over 3600 satisfied clients. (8)

Because of the low cost of bulk email, many say that it "levels the playing field" for small entrepreneurs, who can finally afford to compete on a national scale. That is, "a talented individual without big corporate advertising budgets, can advertise his/her unique product/service and reach millions at an affordable price." Bulk emailers sometimes see themselves as offering the American Dream to such individuals, and as such, are offended by attempts to stop it. (7)

As a response to some of the rhetoric from their opponents, unsolicited commercial emailers point out that systems already exist for filtering mail based on any number of criteria, and for automatically filing it in certain folders or throwing it away. These "user filters" exist for most mail clients and could be used to automatically delete any mail coming from a particular site or with a certain subject. (2)

However, as many of their opponents rightly purport, bulk emailers often change their subject line and apparent From: address to avoid many of the system-wide junk email filters that have been set up on commercial online systems like America Online. This use of multiple domain names prevents user filters from catching the mail, and renders them effectively useless. In addition, filtering out a single source of junk email doesn't decrease the likelihood of getting more from another source, and it is the rare opponent of UCE who only wants to stop a single sender. (2)

Probably the strongest argument on the part of bulk emailers is that dealing with unwanted junk email is very simple. It only takes a few seconds to download any email message, they argue, and even less to scan and delete it. They also point out that most users pay a flat rate for their Internet access, and don't pay anything for messages received, and so the cost of receiving any message, unwanted or not, is no different than receiving a phone call; the cost is covered in the flat monthly rate. (7)

Similarly, the cost to receive a junk email message is far less than the cost to receive a fax. An email message consumes no paper, no toner, and is viewed in seconds (far faster than most fax machines). In fact, since email messages are stored until they are viewed and can be received several at a time, receiving a message does not block legitimate correspondence in the same way that unwanted faxes do. (7)

Finally, bulk emailers are quick to point out that because email consumes no paper or toner, it is environmentally friendly, especially when compared to the sheer tonnage of regular bulk mail which must be shipped and thrown away every year, or bundled for recycling, which can take a lot of time each week. (8)

As mentioned previously, the battle is also taking place in the courts, and has most recently resulted in a court decision which allows America Online to ban all incoming mail from "known junk email sites", including those of Cyber Promotions. AOL first implemented the ban in June, and was promptly sued by Cyber Promotions. The decision on November 4th ruled that America Online could continue its filtering and that AOL's mail boxes were not forums "in which Cyber [Promotions] has a right to speak." (2,3)

This decision is noteworthy, not only because it was important enough to actually get real media coverage, but because it indicates that commercial email will not be treated in the same way as normal bulk mail. This is welcome news to many opponents of junk email, who feel that their longstanding arguments are finally gaining legal force.

Unfortunately, there has been much talk and little research on this topic. There have been no real estimates of the "wasted" bandwidth that unsolicited commercial emails take up, although it is certainly a mere fraction of HTTP (Web) traffic. In addition, there are no factual estimates and only dire guesses about the volume of junk email that might exist in five years if UCE were to be given clear legal ground.

In my opinion, this debate is very relevant, and could very well spark some real legislation regulating Internet traffic, which could theoretically have repercussions for Usenet and maybe even the Web.

I think that many of the arguments on both sides are a bit weak. The most often-used (and least defended) argument against UCE is that it incurs cost for the recipient, just like junk faxes. However, as Internet access becomes more common and correspondingly cheaper, it is hard to see how the cost of receiving an email message is any greater than the "cost" of receiving a phone call. The cost of both is subsidized by the monthly fee.

Commercial emailers, on the other hand, often tend to see the Internet as little more than a cheap business opportunity, and their argument that junk email is easily filtered out is simply not true. In fact, most of the Internet Service Providers that specialize in sending junk email take pains to make sure that their messages are not filtered out; after all, they are no good if never read.

There is also a lot stronger public backlash to junk email than most bulk emailers would admit. Many seem to tell their clients that occasionally someone will complain, but that most people don't actually mind receiving their messages. This has not been my experience at all, and judging from the volume of traffic on news.admin.net-abuse.email, I'd say that I'm not alone.

Personally, I think that bulk email will eventually evolve into something very similar to the current telemarketing situation. I think that a "Do Not Mail" list will become mandatory, and that junk emailers who fail to use the list will be fined, assuming that they can be tracked down (which is reasonable). I don't think that UCEs will be banned altogether, because the cost to the recipient is negligible, unlike the case for faxes. But I would hate to see the result if junk emails were completely unregulated. I agree that they would increase to the point of uselessness.

Nor do I think they should be banned, assuming there is a list where I can sign up so that I will never get another unsolicited commercial advertisement. This will continue to allow poor entrepreneurs to market via the Internet, and may actually cut down on real bulk mail, which might even reduce the load in the post office (and improve their efficiency).

So, in conclusion, the battle for unsolicited commercial email is not over by any means. The anarchistic nature of the Internet allows for UCE to be sent in new ways as quickly as its opponents can figure out ways to block them. And while it will certainly be used by many merely to make money, and will serve as a mere annoyance in the mailbox, others may find it their only marketing option. But until it is regulated in some way, the controversy will continue. And you can be sure that Sanford Wallace will be in the thick of it.


  1. "Battle for the Soul of the Internet", by Philip Elmer-Dewitt
    TIME Domestic, July 25, 1994 Volume 144, No. 4
  2. "A Spam King Taunts and Tests His Foes", by Gordon T. Thompson
    New York Times - Cyber Times Extra, October 10, 1996
  3. "Judge Rules E-Mail 'Spammers' Not Protected by First Amendment", Associated Press
    New York Times - Cyber Times, November 5, 1996
  4. "Stop Junk Email", by John C. Rivard
    http://www.mcs.com/~jcr/junkemail.html, November 20, 1996
  5. "Understanding Junk Email", by John C. Rivard
    http://www.mcs.com/~jcr/junkemailmoreinfo.html, October 29, 1996
  6. "Restrictions on Use of Telephone Equipment"
    United States Code, Title 47, Chapter 5, Subchapter II, Section 227, January 24, 1994
  7. "Defending your Rights of Free Speech!", by Cyber Promotions
    http://www.cyberpromo.com/freespeech.html, December 17, 1996
  8. "Truths about bulk e-mail", by Cyber Promotions
    http://www.cyberpromo.com/truths.html, November 13, 1996
  9. "Bulk Email", by Southwind Enterprises
    http://www.southwindent.com/bulkeml.htm, December 18, 1996
  10. news.admin.net-abuse.misc
  11. news.admin.net-abuse.email