(The Federal Trade Commission has not even published the rules. Patience folks.)
Besides, there happens to be a rather valid reason which most commentators (especially the anti-spam crowd) have not referenced as to why the Act is narrowly focused. The United States has something called the Bill of Rights. Canadians call it the Charter of Rights and Freedoms. For the full analysis, you will want to read How The Anti-Spam Crowd Helped To Kill An Opt-In Law For The United States.
What is important?
Education. For one thing, the Direct Marketing Association needs to change its stance and support "affirmative consent" as the only way to fly.
It does not help to have the three largest marketing organizations in the United States refusing to abandon unsolicited email marketing as an acceptable approach.
(Hey, don't believe me. Read the press release issued by the American Association of Advertising Agencies (AAAA), the Association of National Advertisers (ANA), and the Direct Marketing Association (The DMA) on October 14, 2003 setting out their 9 guidelines for email marketing. When you get to the page, open the index for 2003 and scroll down to the release on 10/14/2003.)
Why? Consumer studies (there was another one released at the Anti-Spam Forum organized by the OCED in Brussels in the first week of February) indicate spam is beginning to erode consumer confidence in doing business online.
This is serious stuff.
Quite honestly, the DMA's position is a joke - stating in essence unsolicited bulk e-mail is legitimate if it is not dishonest and the consumer can opt-out.
The DMA membership must understand, unless they change their stance, a "do not email registry" - despite all its potential flaws - will likely become reality this year - especially with 2004 being an election year in the United States.
Speaking of which, the Federal Trade Commission (the Commission) issued a request for information on the "Do Not Email Registry" on February 23, 2004. You can read a copy of the press release and related RFI here.
The average individual is not happy. People thought legislation would solve the problem. It won't.
All any law can do is establish a framework and give the authorities the needed tools to go after the "bad guys."
By the way, to gain a better understanding of how the Commission has prosecuted "spammers" in the past and what the Commission is proposing to faciliate international prosecutions, you will want to read the presentation made by Hugh Stevenson of the Commission (It is a PDF document) at the recent OECD sponsored conference on Spam held in Brussels on February 2 - 3, 2004.
Even if we had a simple law which stated - "though shall not send unsolicited e-mail" - the amount of "spam" would continue to increase.
Why? Because the underlying issue is with the protocol to send e-mail and as long as sending unsolicited commercial email remains commercially viable people will continue to exploit this weakness in the system.
(So, why do I think a do not spam registry is inevitable? As the cry to do something grows - a Do Not Spam Registry is a way for the Republicans and Democrats to side step the issue during an election year. Political pabulum in my view, but hey - isn’t life grand.)
What is significant then?
A recent news report indicating China is likely to pass some form of anti-spam legislation in the second half of 2004. Use this to read the Press report.
This shows a clear International consensus has developed on the harmful impact of the "spam robots" spewing out millions of e-mails.
The problem is the consensus may be too late to save the situation. I write may, because on another front there have been some interesting developments.
Technological change
Have you heard of SPF? This is an acronym which stands for Sender Policy Framework.
Okay, let's back up for a second. In the spring of 2003, the Commission held something called the Spam Forum.
At the time, something called the Trusted Email Open Standard was unveiled. What is the Trusted Email Open Standard and why is this important?
For a while now, people have recognized email filters are not the solution to spam. Filters are essentially defensive mechanisms and studies indicate there is a lot of collateral damage.
By collateral damage, I mean a person not receiving email which he or she has requested.
How can this happen? Many filters send email which does not meet the scrub test to the junk file. We have a tendency to simply delete everything in the junk file. Even by scanning the subject line, you may miss something important.
The result. Email you wanted to receive ends up getting deleted.
People asked, "is there a way we can sort legitimate email from illegitimate email?"
Now I have to be careful. Legitimate email has a variety of different meanings depending on who is making the utterance.
But let's move forward for a moment. The thinking was, if we could find some way to verify the sender, then email from a verified sender could pass and unverified email would either get scrubbed and sent to the junk file or simply not be accepted.
Great. Why is this important?
Remember, I referenced a problem with the protocol (SMTP or simple mail transfer Protocol) to send email?
The issue? The protocol does not require the sender to verify his or her identify before the recipient receives the email.
In essence all that happens is the sending computer tells the receiving computer, "I have a message for you." The receiving computer says, "Great." A packet of data, containing the message is transmitted and we are done.
(This is an over simplification. Forgive me. I am writing this so we can all understand it.)
Many spammers exploit the protocol by using false or misleading header information with their email messages, including false email addresses.
How is this a problem?
Well, let's see. I want to send a virus in an email which is going to infect millions of networks and shutdown the Internet. I don't wish to get caught. By using false header information, this makes it difficult to sort out who sent the message, allowing me to remain anonymous.
Or, I want to send a message which looks real and causes people to pass on confidential information, which I can use for my benefit. To do this I am going to need to use false information in the header (a false domain name) and trick people into giving me the information I want.
But, wait a minute. What if there was a way the receiving computer could ask the sending computer in essence "Who Are You?" before receiving the message?
The sending computer would answer "I am so and so." The receiving computer could then verify against an approved list "Ah, yes, I know who you are, ok I will receive your message."
In this way, you could simply trash unverified email without taking up space on your computer.
Nice in theory, but how do we implement the concept in practice?
The first concept - Approved Senders
Set up a registry of "approved email senders." Want to be approved? Agree to a set of marketing practices (essentially - only send commercial email with prior consent or to existing customers) and have your behavior monitored by an independent third party.
On the approved list? Your email gets by the filters.
This is in essence what the Trusted Email Open Standard (TEOS) is all about.
(To read more about TEOS check out the comment and links in footnote 5 and footnote 21 in the article The Death Of Email Marketing? concerning something called Project Lumos and also visit the web page set up by the Eprivacy Group for the Trusted Email Open Standard.)
Remember the Spam Forum organized by the Commission back in the Spring of 2003? When the Trusted Email Open Standard was announced at the time of the Spam Forum, CAUCE and other anti-spam groups came out in support of this approach.
To become an approved email sender, you have to pay an annual fee and post a bond to secure performance.
(Do you recall the howls of protest over Habeas?)
The group set up to run the registry? One group includes Bonded Sender, which by the way is owned by Iron Port, the same company which owns SpamCop.
The independent third party Bonded Sender is working with? An organization called TRUSTe.
Recently, Ms. Fran Maier of TRUSTe made a presentation (the document is in PDF) at the OECD spam conference in Brussels. The document is worth the read.
The list of trusted sender programmes not only includes Ironport's Bonded Sender, but also Habeas Sender Warranted Email; Email Deliverability Database (EDDB); ePrivacy Group's Trusted Sender and Email Service Provider Coalition's Project Lumos. Bonded Sender presently has the most prominence as it is the program of choice for MSN and Hotmail.
All fine and dandy, but this approach still does not get at the underlying problem.
As an aside, the implementation by Microsoft of Bonded Sender is having a bearing on legitimate business. For the details, read this page put together by Ken Evoy of Site Sell.
In essence, send an automated message to a hotmail or msn address - even when requested - and it is being trashed by the MSN filters.
This is a problem for those who run confirmed mailing lists. Why? If a person subscribes using a hotmail or msn mailing address, he or she won't receive the confirmation message. Meaning she can't confirm her subscription. Ouch.
A suggested work around? If people are reluctant to give out there personal email address, suggest opening a mail box with Noveltymail. It's free. You get 25 mb of space and the mail server used by the owner has reasonable filters.
Enter SPF - Sender Policy Framework
SPF or sender policy framework is an open source code. What will SPF do?
The website for SPF states:
SPF fights email address forgery and makes it easier to identify spams, worms, and viruses when domain owners designate sending mail servers in DNS, so that SMTP receivers can distinguish legitimate mail from spam by verifying the envelope sender address against client IP before any message data is transmitted.
Who is championing SPF? America Online.
Want to know all the nitty gritty? Visit the SPF website.
Of course, recently Microsoft unveiled its concept titled Called-ID For E-mail designed to stop domain spoofing or phishing. (You can get a royalty free license from Microsoft to implement the Caller-ID for E-mail.) At the same time Yahoo is going ahead with something called Domain Keys. Yahoo plans to give away the code. Both concepts are close cousins to SPF.
(You can read most of the details on the SPF website under the News section.)
Also Sendmail, the major provider of mail servers to large corporations is working "to accelerate deployment of these new anti-fraud and anti-spam technologies through its open source and commercial products."
It is estimated around 60% of the world's email is handled by Sendmail's mailservers. For the details of Sendmail's involvement, use this.
All very interesting. "But," you may be asking "what does all this mean for me and my business?"
The Future Of E-Marketing
* We need to refocus our energies on customer acquisition through the use of search engine listings, methods of viral marketing and the use of public relations (both on and off line) to get the word out.
(Recent reports of the Norton anti-virus software having some sort of negative impact on affiliate links is disconcerting - but again, people who use this type of software are not likely to buy anything on the first visit - so I am not certain the hue and cry is that serious.)
On the whole question of search engine listings, the mantra remains content - which is why blogging is all the rage among marketers.
On this score, here are some resources:
Looking for sources of information on search engines? The leading site is titled Search Engine Watch. Also visit Bruce Clay.com
Need a tool to develop key words? Word Tracker provides an excellent free guide.
Want software to help with the whole process? The grand daddy remains Web Gold, which you can take for a trial run.
Not a techno geek? Site Build It is an excellent product for those looking to set up shop.
Your List
* There continues to be a window of opportunity to build up your mailing list through proper co-registration strategies, but we must understand subscriber respect is paramount.
By the way, if you are truly serious about this approach, Ed Thorpe of Home Grown Business Advocate recently published an excellent How to guide. Ed is an acknowledged expert in this area and his material is well worth the read. For the details use this.
I appreciate there are those who are preaching e-mail marketing is dead.
My own view is not so fast. It does make sense to provide the consumer with other means of receiving your message. But to write off email at this stage is a mistake.
On this one I adopt "my mother test," meaning until my mother is prepared to adopt RSS, etc. let's not write the obituary of commercial e-mail as a valid method of marketing.
Having said all this, for a list of relevant of resources check out this list.
(As an aside Quikonnex recently introduced something called Quikview which holds a lot of promise.)
Comply, Comply
* On the compliance side, we need to go beyond merely ensuring our messages meet the bare minimum legal requirements of:
(i) having an honest header and from e-mail address; (ii) using straight forward subject lines; (iii) ensuring our marketing messages are not misleading; and (iv) satisfying the opt-out requirements.
(I appreciate this is an over simplification. Recently, I had the opportunity to interview a staff attorney for the Commission concerning the implementation of the Act. Look for publishing of the interview as a PDF document in the next issue of the Journal.)
* It also means using a "reasonable" site disclaimer to ensure affirmative consent upon subscription. When I write reasonable, I am talking about meeting the reasonable expectations of your subscriber.
Therefore a straightforward statement indicating upon subscribing, the person is inviting receipt of commercial messages concerning the subject matter of your e-zine, newsletter, etc. to his or her subscribed e-mail address is probably sufficient.
In this way your subscriber is neither mislead nor deceived. You may wish to go further and make a general reference to in house, third party and solo advertisements depending on the type of e-zine or newsletter you publish.
(For a more detailed analysis on this point, you can also read You, The Commission, Advertising And E-Mail Marketing.)
However, I suggest it is not necessary (as I have seen on some sites) to list every specific source of paid commercial advertising which you run in your e-zine.
* For those who run co-registration services or who buy leads through co-registration services, you may recall the UK Information Commissioner guidance of having the person who is signing up for a contest, etc. to invite receipt of marketing information by checking a tick box to affirm consent.
By inviting receipt and giving clear notice, you have also met the second part of the definition for affirmative consent dealing with a third party sending commercial messages. Again, put yourself in the shoes of the consumer - what is the person's reasonable expectations?
(If you are unclear about the issues, read the definition of "affirmative consent" in the Act and review The Guys and Gals In Blue Have Arrived which includes a link to the Commissioner's guidance.)
More On SPF And Being An Approved Sender
* Run an auto responder or list server from your web host? Plan on implementing SPF and Caller-ID For E-mail. Use a third party service? Find out when your service provider is going to be implementing these new technologies.
* Consider becoming a trusted sender. What? Pay to send e-mail. How gauche. Besides, won't the implementation of the new anti-spam and anti-fraud technologies do the trick? Reading the tea leaves, this will likely become a requirement.
Why? While verifying the sender's identity and domain may help to solve the problem of online abuse, outstanding issues remain.
(I write "may" as the introduction of SPF, Called-ID for Email and Domain Keys is still in the early stages. Each approach has pros and cons, with some changes required in the way email is sent and delivered and much testing remains. For more on this aspect, you will want to read this article written by Anick Jesdanun of Associated Press and published in az central.com.)
For example, it is possible to take over another person's computer or domain to send out the unwanted virus, worm or unsolicited email.
To protect against this sort of activity, mail servers will continue to utilize filters to check messages received from identified, but unverified sources.
Of course, e-marketers will continue to ask subscribers and customers to whitelist or safelist the all important from email address.
However, providers of internet access services will prefer senders of commercial email to be bonded and approved as it reduces their workload and related costs of filtering email, especially as the Turn Tide Anti Spam Router is introduced into the market place.
(To read the details on the Turn Tide Anti Spam Router use this.)
As an e-marketer, to increase the likelihood of delivery, avoid filter problems and reduce problems with spam complaints, you will want to take a long hard look at this approach.
How to defray the cost? Do you use a third party provider to send out email? Why not have your provider become a bonded sender and allow subscribers to access the service through the provider.
This approach is already used with security certificates for online vendors and it makes sense to go the same route for the micro business owner, so easing the pain.
Build Your Relationship
* Learn, understand and apply proper relationship building strategies so your subscribers come to treat you as his or her trusted advisor and essentially invite you into their house to sit down over a cup of tea or a glass of water in the kitchen to help resolve their problems.
(For those who are not familiar with this process, again I recommend Ed Thorpe's material. Ok, I admit a bias. One of my products is included as a bonus. Having said this, the material Ed has put together is quite helpful and if you are not familiar with the strategies he teaches, the investment is well worth it. For all the details, use this.)
Speaking of building relationships and for a trip on the far side - for a hoot - check out the recent announcement of a new University on E-mail marketing and for those of you who are fed up with receiving e-mail promising you unfound riches from some son of this or that deposed despot, (hey, what about the daughters?) you will want to read about The 3rd Annual Nigerian EMail Conference.
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John Glube, Publisher and Editor of Head's Up, A Copywriter's Journal. Not yet subscribed to the Journal? To get all the details Use This.
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First Published 28.02.04.