I’m not frustrated, just amused.

I used to be frustrated, but then I got very good at my job.

Good points.

My point was not that there are not clear legal rules defining what “spam” may be but that practically, it is useful to go beyond those rules in figuring out interactions with customers. (Hence the Potter-Stewart-isms) One of course wants to make sure that all of the nitty gritty of legal and practical compliance is in place, which, as you point out, is something done by all the sites swirling about in the maelstrom we’re in.

What I was trying to say is that simultaneous to the understandable frustration that you’re venting about, whether or not folks are hypocritical, inconsistent, whatever, they are what they are. And so the task falls to us to make them happy (or at least attempt to make them happy) even if it means acknowledging that inconsistency and working within its constraints rather than wishing those constraints away.

I think the more apt expression isn’t “I know it when I see it” but rather “You can’t have your cake and eat it too.”

If you see value in one social network than you will correspondingly suffer the consequences of e-mail inundation from another social network. Besides, the Potter Stewart definition is an expression of futility, not one of success and I don’t think this problem is one we should throw in the hat on just yet.

These people are applying a Potter Stewart definition to social networks by applying a Potter Stewart definition to the e-mails they send out or their registration flows. The irony here is that the e-mails, reg flows, and address book importers are remarkably similar… Why? Because they’re all optimizing the “viral chain.” If they didn’t they wouldn’t be successful and that’s true for LinkedIn, Plaxo, Facebook, MySpace, and Tagged.

You can pick and choose what social networks you are on. You can pick and choose the definition of what level of invitiation requests, reinvites, member updates, and address book importers you think personally are good and bad. You cannot pick and choose whom you choose to apply that definition to. You cannot pick and choose which invitation requests, reinvites and member updates are “spam” and which are “not spam” on the public square (Yes, David, you can make this choice on your private e-mail filtering algorithm ).

None of these companies are committing anything fraudulent. These companies are legal entities. Sure someone could sue MySpace about their e-mails, but don’t expect Facebook to be on the sidelines cheering about this, not by a longshot.

Spam is not pornography. There are actually very clear rules defining it so you don’t have to resort to “know it when you see it.” The same rules have been around since junk mail, wire fraud, etc. This gets confusing because people seem to confound a bunch of things. SPAM itself is just unsolicited commercial e-mail. This definition has both edge cases and instances of fraud and abuse. For the former you have e-mail ads at the bottom of your Hotmail and Yahoo! account e-mails (exempted from CAN-SPAM due to a “primary purpose” clause), user-initiated actions like invitation requests (spam? see below), and commercial email list spam (there are some really f’d up loopholes here allowing companies to pass the liability downstream to the marketer). For the latter you have 401 schemes, penis/breast enlargement scams, green card scams, and the like—all felonies even if it were not e-mail (spam).

Potter Stewart’s argument doesn’t fly here because the intent of all the social networks listed above and most social networks in general (including your company, Ning) is to be in compliance as much as is possible. That’s why there is an opt-out/unsubscribe at the bottom of every Tagged e-mail and Plaxo e-mail. Yet all the social networks need some form of SPAM to have any virality as well as to keep the network density (members like to receive updates, not a big spam problem because these people have opted in, it’s far more annoying when you never became a member in the first place). IANAL, but I think that the current definition of SPAM defines these e-mails as being unsolicited commercial e-mails which according to my “Potter Stewart” reading of commercial seems to be a bit too binary of a classification.

There should be another classification for these sorts of e-mails. Just this week I got a dozen or so e-mails from headhunters, potential business partners, etc. (initiated by them), on top of the hundreds of scam “work at home” and “business opportunity” e-mails I received. Are they spam? Are they that much different than the LinkedIn or Plaxo invite? You make a law, it’s going to be a little tricky.

People applying Potter Stewart’s definition to good and bad social networks because of the “spam” they receive are emotionally worked up (understandable as they’re annoying). But when they define one social network’s stuff as “spam” and with it the confounding associations of fraud, they’ve crossed the line into hypocrisy.

The mechanism the law provides currently is opt-out/unsubscribe.

The problem is they never click on an opt-out? Why? That’s where you get into the spam identity and enforcement problem. That’s outside the scope of this article.

If there was a law defining the level of these then every one of these companies would be in compliance with it. But the way the current laws are written (fighting the last battle over e-mail ISPs and absolving large corporations of legal liability), every web 2.0 company is skirting this. That’s the problem when you created a law (CAN-SPAM) that everyone knows wasn’t going to mitigate the problem at all, but what the heck it’s harmless—it’s never harmless, it has unintended consequences.

It doesn’t make our jobs any easier, but actually, I think most people do pick and choose just like this, and I don’t think that’s wrong. If Potter Stewart were alive today, I would not be surprised if his reaction to what is and isn’t spam would be the same as his approach to pornography. Distinctly un-binary, but in the world of actual humans (and law) context and intent matter.

It is desirable from an engineering perspective to want to consider none of it spam or all of it spam, but that’s not the way the world works for non-programmers. I message I want is not spam; a message I don’t is. There will always be haters and complainers, but I think the challenge for us becomes to make sure the “messaging opportunities” provide ways for things to seem as desirable as possible to the recipients — making the purpose of the messages as well as, yes, their appearance, really accomplish something for the recipient.

An impossible task to truly “solve” but a goal to work towards nonetheless.

(Disclaimers: I’ve never used Tagged, I have no idea how wonderful or not the user sign up procedures are, these are just my opinions, I receive no money from the Potter Stewart Appreciation Society in exchange for my blog comments, etc etc etc)