Trends Report: Spam Redux
The 2003 DMA’s in Orlando, Fl was inundated with talk of the impending California Spam Law that had just gotten through the state’s legislature. By November, the talk had died down from fever-pitch to cautious optimism at AdTech NY. In December, the President signed the federal CAN-SPAM act, which alleviated many fears and apprehensions running through the email marketing industry. January 1, 2004 is now four months gone. The industry has made some small tweaks to deal with CAN-SPAM, but the effect has been seemingly much less detrimental to email marketing than first feared.
To simplify the equation, email publishers are either following the letter of the law or the spirit of the law. The letter of the law says that each email must contain verified opt-in information, physical address for sender, etc. However, the gray area in the spirit of the law opens up the definition and execution of legislated measures to those implied by the publishers as necessary. There is intentional gray area left in the CAN-SPAM bill which leaves its interpretation open for multilithic opinions. This gray area was intentionally left in place by lawmakers to keep the bill from being draconian, inflexible and able to be “out-dated.” Instead, the gray area of the law could render it impotent as email marketers search for ways to let market influences, not federal legislation, determine the playing field.
Two weeks ago, IronPort announced that Microsoft was joining its ranks with its email services, Hotmail and MSN. Effectively, this meant that Microsoft was allowing the “whitelisting” of certain publishers who are bonded, or trusted, senders to email addresses under their umbrella. Shortly after, Scott Weiss, CEO of IronPort announced that they were in talks with both Yahoo and AOL over the possible use of IronPort’s whitelisting technology in handling commercial email.
This is a bold step for the industry. Are whitelists the solution for the problem of email? The article linked to above from InternetNews makes the point that:
The problem with whitelists is that they are relatively ineffective if no one signs up for the program. While IronPort has 28,000 organizations signed up to receive the whitelist, only about 100 sending organizations have signed up to the Bonded Server program, or about 6 to 10 percent of the world’s sent e-mail.
If a whitelist is in place for Yahoo, AOL, MSN, Hotmail then more marketers would surely sign up. However, email marketing is a two sided beast, much like the Roman god Janus with two faces. There is a great deal of money to be made by following the spirit of the CAN-SPAM law and laying low on the radar and keeping a near to the ground profile. Instead of raising too much attention, a marketer could always shift IP addresses, continually put out fires with ISP’s as they arise and deal with complaints from individual consumers as they roll in. By joining a whitelisting program, many marketers feel that they are putting themselves up for scrutiny and shining a light onto their practices which might not always be the most ethical. For larger email marketing companies, such programs make sense. However, in a bonded sender formula many of the marketers actually producing large amounts of bulk commercial mail do not want to draw attention and face the scrutiny that such a program exerts.
The crux of the situation is that competing models are fighting for dominance. In one corner is the “bonded sender” formula which basically adds postage and goes above CAN-SPAM regulations by requiring double opt-in. On the other side of the field is the whitelisting formula which is based on the publisher identifying opt-in’s and limiting one’s list to those who are truly interested in receiving a publisher’s mail in order to keep the complaint ratio low and stay on the list. Neither solutions means a publisher is a saint, it means that they are able to account for their actions. An analogy would be the conservative idea of paying for pollution amounts rather than having governmental agencies regulate through such avenues as the EPA. Under this idea, corporations and businesses would be allowed to produce pollution or waste products up to a certain amount but pay for that amount produced rather than face government bureaucracy. With emailers on whitelists, the formula is similar. They are working to stay compliant but accept that occasionally some email will get to users who do not want mail from their domain(s).
From an ISP perspective, there is much more involved than just the protection of consumers (which some ISP’s do truly care about). Other considerations are PR value and the almighty dollar. Defining email publishers as either shady, bulk mailers, opt-in, or double opt-in has great value to ISP’s because it shows they have the power to name and define emailers. Even in the ancient world, the power of naming someone, something or somegod gave power to an individual over the thing being named. Hence, there is great power in being able to define and name those trying to access your customers. The solution to the bulk email situation varies with the intent of the solution-provider.
Along those lines, the solution for emailers from their own perspective varies with each publisher’s intent. With the current whitelisting formula taking hold on the industry, it seems that many publishers are taking a “wait-and-see” attitude and waiting in the wings to see what happens to the publishers who stick their necks out.
What will ultimately happen? That depends on who is asked along with which ethical and financial considerations are taken into account. 2004 will surely continue to be a year where commercial email is examined time and again by market forces, small and large players, the government, consumer advocacy groups and ISP’s. How things play out is anyone’s guess. However, the key and determining factor will be the ability of solution providers to position themselves in the user experience/legal realms above their competing solution providers.
Sam Harrelson is the Co-Editor of the Digital Moses Confidential. He can be reached at [email protected]
