Can you obey the law and still be a spammer? Leave it to the politicians to show you how it's done.

Charlie Crist, attorney general of Florida and gubernatorial candidate, styles himself as an anti-spam crusader. Indeed, he proposed legislation to fight spam in Florida, and has made it a priority to enforce it. So how could Floridians complain that his election campaign is spamming them? Democrats and Republicans alike were infuriated that the email they received from Crist's campaign was unsolicited, and therefore spam, as reported by the St. Petersburg Times.

"He's not living up to his own standards," complained Dorothy Butler in the same newspaper; Butler is a Democratic recipient of Crist's email solicitation. "To me this is spam because I never asked for any of his political stuff."

Although that message did have instructions on how to opt-out, another recipient complained his repeated requests to be removed from the list went ignored until he wrote to the campaign reminding them of Crist's anti-spam credentials. 

"The irony and hypocrisy amazes me. Do I need to file a complaint with the attorney general's office? Anybody have the number for the Fraud Hotline?" wrote Joe Spooner, a Republican. Spooner eventually was removed from the list. 
 
In response to these complaints, Arlene DiBenigno, Crist's political director, maintained that "it's not spam, its political speech. We're not selling anything, we're not being deceptive. We love the First Amendment, and there's nothing more powerful than political speech."

It's a shame that Crist, who from all accounts has worked hard to fight internet fraud, is being tarred with that brush. But it's debatable whether the Crist campaign has learned its lesson. According to the site's privacy policy, recipients may opt out directly from his email campaigns or by writing to info@charliecrist.com, which, at the time of this writing, doesn't work, and hasn't worked since December 2005, when it was first discovered by Brian McWilliam in his Spam Kings Blog. 

It's easy to roll our eyes at this story as just another example of the hypocrisy of politicians who write laws that exempt them, but it demonstrates that, when it comes to email, just because you're obeying the law doesn't necessarily mean you're following the rules.

The law most U.S. senders are concerned with is the CAN-SPAM Act of 2003.  When enforcement began two years ago, it was greeted with applause by marketers who wanted federal guidelines instead of stricter state-by-state regulations. But it was also met with derision by Internet watchdogs who complained that the act, rather than getting rid of spam, showed marketers how they… well, can spam.

Though you may argue over whether or not Crist's email messages were in fact "selling anything," as political speech this campaign is not subject to the laws against commercial email such as the CAN-SPAM Act of 2003. Savvy politicos know that CAN-SPAM and other anti-spam legislation don't apply to them… but they follow the laws anyway, as if they did. 

Complaints against Crist's email practices might not get very far in a court of law, but Crist's campaign was certainly a loser in the court of public opinion. Recipients hold email senders, whether political, non-profit or commercial, to a higher standard than what is required by the law. 

For example, the CAN-SPAM act doesn't require that email recipients opt-in to receive commercial email, just that those recipients have the opportunity to opt-out of email they don't wish to receive. Adhering to the letter of the law in this respect might keep a commercial emailer out of legal trouble, but recipients have a higher standard which, like it or not, senders must comply with in order to avoid complaints from consumers who didn't sign up to get "this stuff." 

Those consumers hold a knife to the throat of the ISPs that provide them service, and demand that the ISPs block mail from sources they consider spammers, regardless of the law.

The same mismatch between law and expectations can be found when it comes to honoring opt-out requests. When a recipient opts-out from receiving email, he expects the request to be honored immediately. The law, however, gives the sender up to ten days to honor that request regardless of the number of requests or their urgency. Neglecting to do so more quickly isn't fraud, but it's certainly bad policy.  

What makes poor email practices so damaging is that they cause the recipient to lump the sender, who may be merely hapless, together with the truly malicious? There are real criminals abusing email on the internet, spammers who aren't just gumming up your email inboxes with pharmaceutical ads but are spreading malware so they can commandeer your computer to spew yet more spam, or phishers who want to steal your password so they can steal your money. 

Although political emails aren't regulated by CAN-SPAM, they are regulated by the people who route them, who get them and who, the politicians hope, act on them. Ultimately, it's not the court of law legitimate email senders need to worry about; it's the court of the consumer and public opinion.

Wendy Roth is the training manager for Lyris Technologies, a pioneer in email marketing solutions since 1994. She works closely with enterprise-level marketing and advertising professionals to help them achieve their email-related objectives, and collaborates with engineering teams to ensure Lyris' products continue to be based on marketers' changing needs.