December 23, 2003
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By Tech Editor Jill Keogh
Legal disclaimers: We are not lawyers, please consult your own legal counsel for advice. Also, no part of this article may be reprinted out of context. Thank you.
If stopping spam was a no-brainer solution, there’d be no debates. In order to stop email crime, porn and the assault of deceptive emails, Congress boldly trumped all state laws and prohibitions relating to spam and opted to loosen the noose on opt-in in order to fix the problem.
In the world of email marketing, “permission” has separated legit marketers from spammers. After all if you didn’t have permission to email someone, you respected the anti-spam laws and worked your opt-in channels. Email infrastructures were upgraded to technology that rose above the easily spoofed old “opt-in” and enabled “double opt-in”.
So when the new federal law dubbed “Can-Spam” was passed in December, many were startled and confused by the “opt-out” marketing practices now mandated by law. Congress chose to establish an enforceable floor instead of a visionary ceiling. The opt-out decision concedes the futility and exhausting battles over permission logistics and even concedes spam itself in order to win the war. But, the law’s opt-out threshold doesn’t mean marketers should drop their standards, so don’t expect your email vendor to start letting you spam any time soon.
The frustration for opt-in marketers is that this new legal spam will undermine years of progress toward establishing the right to email someone and this law may result in an assault on the inboxes of every hard-earned, opt-in customer. The panic comes with visualizing the enduser’s inbox polluted with hundreds of thousands of new legal spam messages.
If it doesn’t immediately knock you over the head, sending unsolicited email has been made legal provided you follow the rules. With some relatively low thresholds to cross, some businesses may feel they can spam their brains out until the recipient unsubscribes. A previously dead marketing channel - email prospecting for new business with recipients you have no relationship with - has been revived. Imagine the B2C marketer who can now buy a previously taboo email list (it wasn’t opt-in) and can now legally email offers. Let’s say they happily comply with the opt-out and follow all the rules. As long as the email sender follows the rules, there are no limitations on the source of those email addresses (just increased penalties if they don’t follow the rules and the email addresses were obtained through shady practices). It may all be legal, but it won’t work.
Consider that Can-Spam has the support of the biggest ISPs. The last thing they’d enthusiastically endorse is a spam volume increase. Flash back to a little tool in place called an email filter and what its big new job will be with the new spam.
Perhaps the most powerful balancer in the law protecting recipients from the uncontrolled abuse of this new legal spam, are the carefully included rights empowered to the ISP. Under Can-Spam, ISPs are given the legal right to filter and block email any way they deem necessary according to their policies.
The law doesn’t burden ISPs to investigate if the email was permission based or unsolicited (spam)…a previous point of contention and liability when permission email was blocked. This is the beauty of the opt-out decision. By legalizing unsolicited email, the ISPs don’t have to get sidetracked by the permission status. They can block incoming bulk email simply on the basis that it was complained about. They will continue to block or route unsolicted email into spam folders. This spells trouble for all unsolicted email senders but it’s business as usual for the ISPs and permission marketers who’ve developed relationships based on communications and best practices.
For those in the minority who said opt-in was unnecessary, legally now that is true, but practically speaking – good luck in your email efforts. Although the ISPs won’t be burdened with permission logistics, a legit marketer can’t get around it.
There is a huge correlation between unsolicited email (enabled through opt-out) and the frequency of complaints to the ISP. If your campaign gets complaints, you’ll appear on the ISP’s problem sender radar, you’ll be immediately blocked and that may cripple your long-term ability to email into that ISP. Your IP range will be blocked and that can disable other general email communications from your organization.
The Can-Spam law mandates that all commercial emails carry a clear and well-placed identification that the email is an “advertisement or solicitation”. Correct that….all commercial email except those sent with affirmative consent or permission opt-in. A big distinction. The penalties and fines are serious so undoubtedly that advertising or solicitation I.D. will be included in the “new” legal spam.
By disclosing the advertisement or solicitiation label, senders will admit that the email is unsolicited. The rules-based filters in use by most ISPs will undoubtedly be trained to look for the labels. The law doesn’t state the label has to be located in the subject line. Filters will find the words “advertisement” or “solicitation” no matter where they’re located. That may be why the lawmakers were so careful not to mandate lots of things it had to say…just precisely careful to narrow it down to these two words. That doesn’t mean all legal spam will be blocked; but it is at the ISP’s discretion to do so. If senders try to trick the ISPs by disclosing the advertising identifier in a picture or other method that the recipient can read and the ISPs can’t, the ISPs retain the right just to block the entire email from reaching any subscriber’s inbox.
Legal spam or not, the carefully crafted legislation gives ISPs the full authority to deliver or block anything they want.
So, remember the key is to be a good-guy emailer in the eyes of the ISP. Stand out from the spammers with your best practices. Get a dedicated IP address to be whitelisted for your good practices, keep a static FROM: address that is verifiable.
For more information tune in to MarketingSherpa’s January 15th teleseminar on requirements to learn how to meet your other important legal obligations (link below.)
In the meantime, if delivery remains an important ingredient in your email strategy, stay the course and give Can-Spam a chance. Let the ISPs worry about the opt-out; you keep worrying about opt-in.
Useful links related to this article:
#1. Get a copy of the Act itself -- PDF link:
#2. Guidelines for secure email merge/purge:
#3. Our Managing Editor's letter to Readers on CAN-SPAM implications for marketers and publishers: