Editor’s Note: Amalie L. Tuffin is a member of the Research Triangle Park law firm of Daniels Daniels & Verdonik, P.A.
_________________________________________________________________________________________AOL and Yahoo each recently announced that they would start charging senders of bulk e-mail fees to guarantee preferred delivery of their messages to subscribers’ inboxes.

Their announcements seem to bring to partial life a proposal for an “e-mail stamp” floated by Bill Gates over two years ago. (The Gates proposal was discussed by Linda Markus Daniels in her article “Death of Spam or Just Another Revenue Source for Microsoft? at www,localtechwire.com/article.cfm?u=7379 .)

Bill Gates’ proposal was for ISPs to charge senders a fee for each e-mail, although it left room for a whitelist of friends, family and perhaps even business associates who could send free e-mail to each other.

The proposal was intended to cut down on spam by making to too expensive for bulk e-mailers touting questionable products to operate.

Same Proposal as E-mail Stamps? Or Maybe Not?

On the surface, AOL’s and Yahoo’s certified e-mail plans seem similar to the e-mail stamp proposal. Working with a company called Goodmail, AOL and Yahoo intend to offer bulk e-mailers the ability to pay a fee ranging between a quarter-cent and a cent per message. Once the fee is paid, e-mailers will be able add a unique electronic token to each message that guarantees its delivery past, for example, AOL’s volume and content filters and into a subscriber’s inbox. In addition, the message will be configured so that its images are intact and all html links in the message are enabled. Finally, the message will have a special icon in the subscriber’s inbox intended to indicate that it is a “trusted” message from a legitimate sender.

When looked at more closely, however, the certified e-mail plan is very different from the e-mail stamp proposal. First, it is a voluntary plan rather than a fee that is imposed on every sender of e-mail. No one has to sign up for the service if they don’t want to.

Second, only e-mailers that pass Goodmail’s accreditation process can send certified e-mail. This requires senders to meet the following qualifications, among other things: (i) have at least one year of business history as verified by a commercial identity verification service; (ii) have business headquarters located in the US or Canada; (iii) transmit messages from dedicated IP addresses, with at least a six month mailing history from that IP; and (iv) having a sending history with a low level of complaint rates. Finally, its very purpose is different.

The certified e-mail plan is not intended to lessen spam; rather, it is intended as a mechanism for certain e-mailers to be able to guarantee that their e-mail will be delivered to an end user’s inbox, bypassing spam filters and the like. In other words, the proposal may even increase spam, in the sense that it may increase the amount of unwanted mail AOL and Yahoo subscribers actually receive in their inbox.

Many Groups Object to the Certified E-mail Proposals

In some ways, AOL’s and Yahoo’s certified e-mail plans sound like a good thing. E-mailers participating in the plans are assured that their messages get through to subscribers’ inboxes. Subscribers, in turn, should be able to have a higher level of confidence in certified messages, because they will know that the senders are legitimate companies.

However, AOL’s and Yahoo’s certified e-mail proposal has generated a great deal of controversy. This is exemplified by www.dearaol.com (www.dearaol.com ), a website operated by an incredibly broad coalition of political groups, nonprofits, small businesses and the like. (Where else do you see Gun Owners of America, MoveON.Org Civic Action, RightMarch.com and the Democratic National Committee all joining forces?!) The site is promoting an Open Letter to AOL asking them to drop their certified e-mail program. This group and others have several significant concerns with the proposal.

For example, many users are disturbed that AOL and others will profit from providing a preferred level of access to their inboxes. However, the U.S. Postal Service provides much the same type of preferred access to our mailboxes, albeit at a much greater cost, by allowing senders to choose among Priority Mail, first class mail, business class mail, etc., so it seems to me that these complaints are unfounded. This is especially true given that, unlike with the postal service, users can choose to use an internet service provider that does not have a certified e-mail program and thus avoid the issue altogether.

Another key concern is whether the availability of plans that allow users to pay for guaranteed inbox access will create a “two tier” e-mail system, with those who pay to send messages getting better access, better service, etc. than those who do not pay. As noted on the www.dearaol.com site, at present if AOL (or another ISP) “finds out that a spam filter is incorrectly blocking e-mails from a legitimate business, charity, non-profit, community group, or family e-mail list, it makes good business sense to work with that group to fix the problem and maintain good customer relations. But the moment AOL switches to a two-tiered Internet where giant e-mailers pay for preferential service, the company will face a simple business choice: spend money to keep regular spam filters up-to-date, or make money by pushing more senders to pay for guaranteed delivery.” AOL has responded to this, at least in part, by promising to provide a similar service to non-profit organizations and advocacy groups free of charge (either by providing the service itself or by paying the per message fees.)

The protestors are worried that the very thing that makes the Internet unique — its openness and accessibility to all, which enhances free speech, fosters economic innovation and promotes civic and political organization — will be endangered by a pay-to-send e-mail system. They are afraid that a certified e-mail program is one step down a slippery slope towards an Internet that is significantly more expensive for all. Only time will tell if they are correct.

Daniels Daniels & Verdonik, P.A. has been serving the legal needs of entrepreneurial and high technology clients for more than 20 years. Amalie L. Tuffin concentrates her practice in the representation of entrepreneurial and technology-based businesses, focusing on corporate, taxation and securities matters. Questions or comments can be sent to atuffin@d2vlaw.com