In May, this blog spoke about the problem of false positives being flagged as spam by third-party block lists, and how this could have a serious impact on both permission-based marketing and non-marketing e-mail messages. The issue of e-mail deliverability in the face of spam filtering is getting increased attention, such as the publication by the Interactive Advertising Bureau in October 2007 of its "Marketer & Agency Guide to Email Deliverability". While all of us depend on spam filtering in some capacity to make our e-mail use function at all, there are serious questions as to whether the methodologies of the volunteer as well as commercial block lists are always sufficiently objective and have sufficient accountability given the tremendous impact they have (Spamhaus, one of the major volunteer block lists, states on its Web site that "[a]s at 11/27/06 the Spamhaus Block Lists are protecting 633,374,000 user mailboxes.").

Jonathan I. Ezor, Special Counsel to The Lustigman Firm and a professor at Touro Law Center, has recently published a draft article addressing the self-regulatory and legal regimes covering block lists, and recommending a move toward more objective standards for managing those lists. The paper, entitled Busting Blocks: Appropriate Legal Remedies For Wrongful Inclusion In Spam Filters Under U.S. Law, is to be presented at a conference in Copenhagen in December, and will be published shortly thereafter. The working draft can be downloaded in PDF format here. The Lustigman Firm will continue to pay close attention to this crucial issue for both e-mail senders and recipients.