In appeal, Dutch internet provider XS4ALL lost a case requesting an injunction against direct marketing company Ab.Fab to stop bothering the ISP's customers. The main discussion centered on opt-in (ISP) or opt-out (spammer or e-marketer) mail and the related issue of privacy. From the court's perspective, opt-out is good enough for ISP customers, and the disturbance from spammers is relatively low. Additionally, the court states that if the spam becomes too high in volume, you simply can obtain a new e-mail address.

Everybody recognizes the never-requested e-mails that keep filling their e-mail boxes. When I recently flew to the US and didn't check my e-mail for one day, I had to browse the next day through more than 800 e-mails in order to pick up my four private messagess and 17 mailing list e-mails. At that point, I decided a spam filter was necessary. According to the father of the Internet, Vint Cerf, "spammers are, in effect, taking resources away from users and service suppliers without compensation and without authorization".

The problem forced XS4ALL to set up an abuse department that currently employs five people. In an effort to have a legal basis to forbid junk mail, they took one regular mailer, a company called Ab.Fab, to court. The basis of the case was that the direct mailers were violating telecom and privacy laws that went into effect September 1, 2001. It seemed to be an open-and-shut case when the court sentenced Ab.Fab to stop spamming.

On appeal, though, the verdict was completely different. This time judges found that the telecommunications law didn't apply because that law is mainly aimed at the disturbance caused by outbound call centers, which uses a different type of technology. The cost of the e-mail that users or ISPs receive can be overlooked by the fact that a typical e-mail is only 20-25Kb.

The privacy law, however, did apply. Users can expect that their e-mail addresses will be treated as confidential, similar to a physical address. But the court determined that an e-mail address is not as sensitive as a physical address when it's discovered. If spam mail really bothers a customer, the court states that it is easy for the individual to get a new e-mail address without too much cost or hassle.

The core of the matter is opt-in vs. opt-out mail. Sjoera Nas from XS4ALL believes people should have a chance to indicate whether they want to receive advertisements. By opting in, people will be aware they are on a list. "Opt-out simply won't work. There is a guideline in electronic trade, but nobody is actually monitoring to see if people stick to the rules."

The DMSA, the association of direct marketers in the Netherlands, doesn't agree. They supported Ab.Fab during the case and deny that opt-out won't work. Mr. Reuderink explains that his organization stands behind the spammers or e-Direct Marketers, as they tend to call it (they have their own definition of spam that differs from the definition provided in RFC 2505). But by "support", the DMSA doesn't mean that anything is allowed; they have rules of behavior that must be followed. Their Advertising Code Committee makes sure that everything is done correctly. Sometimes a corrective measure may have consequences, but he adds, "We learned the hard way that we risk losing members by addressing inappropriate behavior. We're in favor of self-regulation."

By self-regulation, the DMSA means the stickers available at all city halls that are meant to be stuck on physical mailboxwa (see Figure 1). The stickera indicate YES or NO for flyers and YES or NO for free newspapers. We've had theaw stickers for years, and in general, they work well. Reuderink sees the opt-out option available on their web site (after three clicks it refers to respons.data-company.nl/dmsa/E-mail.cfm) as a good way for e-mail users to self-regulate.

Figure 1. JA/NEE Stickers on Private Mailboxes. Translated, the first JA (Yes) or NEE (No) indicates the person's preference for receiving unaddressed, flyer-type advertisements. The second JA or NEE is the preference for receiving free publications. Stickers in all combinations of yes/no are available.

The opt-out option on their site, however, only accepts three e-mail addresses. After that, a confirmation mail is sent to the user, who has to verify that e-mail by going to the site again. In addition, this procedure is not valid for excluding mailing lists. Finally, the addresses that users select as opt outs are maintained for only one year. After that time, the delisting is over. The reason given for this time limit is to help keep correct records because e-mail addresses tend to change.

Reuderink assures users that their e-mail addresses are hard to steal and that many security precautions are in place. (Maybe that's why respons.data-company.nl is running an outdated Microsoft IIS 4.0, according to Netcraft). If people don't trust this web-based method, there's also a 900 number that people can use to delist themselves for a cost of EUR. 0,25 per minute. "Opt-out doesn't work. We tried to opt-out our 150,000 customers and the DMSA rejected that", says Nas. "Pure logic", says Reuderink, "people need to make that decision themselves and XS4ALL cannot do that for them".

But that's not the only thing about opt-out the DMSA refuses to acknowledge; they also reject the setting on mail servers to exclude UCE (RFC 822 August 13th 1982). "We were not involved when the RFC was written", explains Reuderink. Nas disagrees and says, "They were also not involved when our constitution was written and still they have to live by it. RFC's are the basis for how we work on the Internet."

Reuderink does acknowledge that to get rid of spammers who stick to the rules, you have to unlist yourself in 183 countries worldwide, assuming each country has only one marketing association. Given the fact that unlisting one address cost me two minutes, you will lose more than one working day to deal with spam (because you still have to look up which organization should delist you), not to mention the currency involved.