The ever-increasing stream of "Can-Spam Compliant" junk e-mail raises some interesting questions. Since Congress in its wisdom obliged us to follow the spammer's instructions if we want to opt out, can the spammer claim that we become a customer in the process? And wouldn't that mean the spammer can ignore the opt-out and keep on sending us more junk e-mail?
A reader recently forwarded me a spam message promoting one of those phony credit card scams where what they're offering is not a bank card but a line of credit to buy their dubious merchandise. But what bothered the reader was the fine print at the bottom of the message from the bulk e-mail house. After giving a link to what it said was an opt-out page, the message said that "by continuing to receive e-mails from (the bulk e-mail house), you agree to the terms of our privacy policy."
So by not opting out, you agree to their terms? That's cute. Remember, with all the phishing scams and spyware floating around out there, you should never follow any stranger's opt out instructions. It's just too dangerous, and it won't make a dent in how much spam you receive. But I was curious, so I followed the hyperlink to the bulk e-mailer's privacy policy. One section in particular caught my eye:
However, after unsubscribing, we cannot guarantee that you will never receive another mailing from us, because we may obtain your e-mail address in the future through a different e-mail marketing program that you have opted into. We can guarantee, however, that if you should ever receive another e-mail communication from (the bulk e-mail house), you will be able to remove your e-mail address via the unsubscribe hyperlink.
Additionally, when you open, preview or click on the advertising portion of our e-mails and/or those of our marketing partners and/or affiliates of (the bulk e-mail house), you have agreed to the terms set forth in our Privacy Policy and agree that as a function of opening, previewing or clicking on the advertising portion of our e-mails, that you will receive new or additional marketing communications from us, our marketing partners and/or affiliates of (the bulk e-mail house).
So every time they send you spam, you're agreeing to get more. Even if you were foolish enough to try opting out, it doesn't matter. After all, there's no way you can ever prove that you didn't opt in with one their unknown partners.
And I see nothing here that would suggest that this spam violates the Can-Spam Act. In fact, Can-Spam emphasizes in several places that opt-outs can be ignored if the spammer receives "subsequent affirmative consent" by the recipient. "They subsequently agreed to our privacy policy," the spammer can say. "We have a binding contract." And the Business Software Alliance and other proponents of sneakwrap licensing would probably rush to defend the spammers' "freedom of contract." The Can-Spam world is just getting stranger and stranger.
10:54:20 AM 
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