People are willing to go great lengths to try to block spam, and that's certainly understandable. Still, I wonder how many of those who use the Spam Arrest whitelist service realize just how challenging Spam Arrest has now made its challenge/response approach?
"I was recently blocked from sending an email to a correspondent who had signed up for SpamArrest," a reader wrote. "It was the normal sort of thing - get an email requesting verification, visit the site, enter the secret word, click through. However, this one has a twist."
Below the authentication code on Spam Arrest's verification page, the reader was confronted with this "sender" agreement:
"SENDER AGREEMENT - By clicking the "VERIFY" button above, and in consideration for Spam Arrest, LLC forwarding your e-mail (and any e-mails you may send in the future) to the intended recipient (the "Recipient"), you agree to be bound by the following Sender Agreement:"
"You represent and warrant to Spam Arrest and the Recipient that any e-mail you desire to send to the Recipient is not "unsolicited commercial e-mail" i.e., the e-mail does not primarily contain an advertisement or promotion of a commercial product, service or Web site; unless the Recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the Recipient's own initiative. Further, you represent and warrant that your transmission of any e-mail does not violate any local, state or federal law governing the transmission of unsolicited commercial e-mail, including, but not limited to, RCW § 19.190.020 or the CAN-SPAM Act of 2003. You understand and acknowledge that it is fair and reasonable that you agree to abide by the restrictions set forth in this agreement. You acknowledge and agree that this agreement is central to Spam Arrest's decision to forward your e-mails to the Recipient. Accordingly, if you violate this agreement, Spam Arrest and the Recipient shall be entitled to (1) temporary and/or permanent injunctive relief to restrain any further breaches or violations of this agreement; and (2) damages in the amount of two thousand dollars ($2,000.00) for each violation of this agreement. You acknowledge that such remedies are appropriate and reasonable in light of the costs and expenses Spam Arrest incurs as a result of eradicating and filtering unsolicited commercial e-mail. You acknowledge that the $2000.00 remedy is a reasonable estimate of Spam Arrest's and the Recipient's actual damages. This agreement is governed by the laws of the State of Washington and the exclusive venue for any action related to this agreement shall be held in the state and federal courts located in Washington. You hereby waive any right to object to venue or jurisdiction based on inconvenient forum, lack of personal jurisdiction or for any other reason."
Not surprisingly, the reader decided he'd forego sending the e-mail to his friend rather than risk $2,000. "I've used this kind of spam blocking service before, such as Earthlink's," the reader wrote. "But I've never seen anything like this hideous 'agreement' before. No thanks."
What's somewhat ironic about this is that Spam Arrest used to make a habit of sending unsolicited commercial e-mail of its own to senders, a practice they ultimately halted when the hue-and-cry got a little too loud. But at the time they told me they believed they still had a right to market to their customers' correspondents. So is this "sender agreement" just a new way for them to get a little revenue from that quarter?
I quite agree with the reader that it would be stupid for him or anyone else trying to send e-mail to a Spam Arrest customer to accept this nasty little EULA. No matter how certain you are that the message you're sending isn't spam, you'd be crazy not to at least first read the entire Can Spam Act (which, by the way, is pretty dreadful reading) and the Washington state law that the agreement refers to before verifying with Spam Arrest. And if you don't happen to have a lawyer on retainer in Seattle, you might want to get one just in case Spam Arrest in its judgment sees your message in a different light than you do.
I can't help but wonder how many Spam Arrest customers are aware of the rather dicey position that their correspondents are placed in by the company's sender agreement. Our reader would certainly love to be able to point it out to his friend, but it's not worth risking $2,000. After all, Spam Arrest is likely to view any message that might cost it some business as all too commercial and very much unsolicited.
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12:20:02 AM 
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