Trends Report:
Spam Redux
by Sam Harrelson
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
sam@digitalmoses.com
