For the last several months, I have been noticing an uptick in the numbers of people who are noticing that their mail is not getting though, and what is getting through is going into the bulk folder.  In the past couple of months we have also seen Spamhaus taking a greater notice and showing a greater willingness to list ESPs on its famous blocking list.

There are three things driving this:

1. Complaints. Believe it or not, people do complain about spam, they just don’t always do it to you. Rather they tell their providers that they don’t like what they’re seeing. Those complaints are factored into IP reputation metrics by some providers and a “fingerprint” of the message may be factored into content filtering.
2. Engagement. We’ve been saying for years that ISPs are taking notice of what their clients are doing with your mail. We are now seeing some pretty firm metrics that indicate that not getting rid of people who don’t care about your mail has a detrimental effect on your ability to deliver mail to the inbox. Now, I’m not saying that ISPs are tracking clicks, but recent experience indicates that continuing to mail people who are refusing to even view your messages has an impact over the medium to long terms.
3. Unclean lists. Who engages the very least with an email marketing campaign? People who never asked to be mailed in the first place. Using purchased, rented, or appended lists is a sure way to drive low engagement statistics and high complaint rates, for the perfect storm of points 1 and 2 to drive decreased delivery.  Right behind that is going to be assuming that permission lasts forever. Sometimes people don’t want mail anymore, so take some time to ask people who haven’t responded in a year or more if they still want to get your mail.

So, what does this mean? Simply that the space has to grow up. When you were a kid, you could run to mama and get her to make everything better. When you grew up some, mama started making you solve some of those problems yourself.  The same is true here: You can’t run to your ESP or an ISP and expect them to “make everything all better.”  They both expect you to take some responsibility for what you are sending and to whom you are sending it.

So, the next time that you have an issue, take some time first to examine what you are doing to minimize complaints and the use of unclean data, and what you are doing to drive engagement.  Take some responsibility for what you are doing. Your ROI, your ESP, your recipients, and their ISPs will all thank you for it.

I also think that this ties into recent discussions regarding whether “best practices” are actually the best things for folks to do on a regular consistent basis.  Consider this quote from Andrew’s article:

In addition, the general rule of thumb for X amount of time has long been 6 months.  Not sure who made that rule up or all of us (me included) who have used it as gospel over the last several years, but 6 months cannot be further from an industry standard.  There are so many factors that need to be looked at: seasonality, product mix, previous engagement metrics, time to inactivity, trending etc….that 6 months is no longer the standard.

I know who came up with that: it was someone who specialized in reputation repair.  The purpose of this “general rule of thumb” has nothing to do with reactivating subscribers and everything to do with quickly fixing a problem that was leading to loss of revenue.

This is the difference between triage and planning. I teach CPR and First Aid (something I’m qualified to do all the way up to Wilderness First Responder). In my more advanced classes, we study and apply the START algorithm to sorting victims in a multiple casualty event.  When you are engaged in triage using START, there are four possible outcomes for someone that you come across who is bleeding and breathing: Minor, Delayed, Immediate Care, and Deceased. All that triage is, then, is sorting your injured into one of those buckets.  You wait on helping the Minor and the Delayed cases.  You do what you can for the Immediate.  And you completely write-off the Deceased.

The first three buckets are the easy ones, it’s “Deceased” that’s hard to call.  That’s why, in most circumstances, we want doctors to do that.  And in our training slides, we look at one scenario when you have to label a 3 year old as deceased, even though he’s probably someone who could be saved. (And, for your peace of mind, we also point out that if resources become available, you should go back and try to save that one.)  But, everyone, no matter their age or socio-economic status, has to go into one of those buckets.

When you are dealing with a triage situation, everyone is hurt.  Everyone needs care.  And the care that everyone gets is not going to be the same level of care arrived at using the same decision trees that you would find if you were sitting in your doctor’s examination room receiving your annual physical.  When you are with your doctor in an exam room, you have time and access to long-term information that allows you to make more precise decisions.  When you’re laying out in the field, unconscious and bleeding, that luxury doesn’t exist.  The people providing first aid have to rely upon rules of thumb and treatment protocols and algorithms.

So, let’s apply that to email.  When you are experiencing good delivery it’s as though you are sitting in your doctor’s examination room — you can take the time to look at various strategies for subscriber reactivation.  You can consider factors like “is an inactive someone who hasn’t opened, or someone who hasn’t purchased.”

On the other hand, when you are not experiencing good delivery, when your sender reputation has tanked and you need to turn to someone like me (or my co-workers), then neither of us has the time to engage in an extended discussion about what an inactive subscriber might be.  This is a triage situation and you’re going to experience some loss as a result of allowing things to deteriorate to this point.  The people that you are working with to fix things are likely using rules of thumb and treatment protocols and algorithms — like “an inactive subscriber is someone who hasn’t opened or clicked in the last six months.”

When you hear about “best practices,” those are generally going to be the rules of thumb, the treatment protocols, and the algorithms that get used in triaging delivery problems.  They’re good for fixing problems, and represent a minimum level care that will generally “do no further harm.”  Just as the treatment decisions made out in a field are not likely to be the same (or even the most appropriate) decisions that could be made with time to reflect and make appropriate plans, following “best practices” are probably not always going to be the best decisions for you or your business.  But, when decisions need to be made now, you need to have something to turn to.

So, what is the takeaway from this?  It’s better to do things because you planned to do them than because you have to in order to stop the bleeding.  You have better (and more granular) options, along with the time to come up with a plan to accomplish what you’re hoping to do.

Image via Wikipedia

Gmail has been busy making some changes lately and not all of them are under the hood.

One of those changes is to their user interface.  If the From: domain doesn’t match the domain of the sender, then Gmail will now display the domain of the sender as well after a “via:” notation.  So, the new format will look something like this:

Sender Name email@example.net via example.com

Here is Google’s explanation of the issue:

Gmail displays this information because many of the services that send emails on behalf of others don’t verify that the name that the sender gives matches that email address. We want to protect you against misleading messages from people pretending to be someone you know.

And the way to get rid of the “via” statement?  Authenticate.  Seriously:

Gmail checks whether emails are correctly authenticated. If your messages are sent by a bulk mailing vendor or by third-party affiliates, please publish an SPF record that includes the IPs of the vendor or affiliates which send your messages. Or, you may consider signing your messages with a DKIM signature that is associated with your domain.

So, it’s not something that I would necessarily worry about, but if you want to get rid of the “via” statement it looks easy enough to do so.

You can listen to the mp3 here.

My impressions are that e360 is likely toast. In fact, I think that there is some chance, after hearing Judge Pozner refer to the damages case put on by e360 and it’s attorneys as “grotesque”, and asking if there existed any documentary evidence to back up the damages claimed, and other bits indicating that this was one of the worst damages cases ever run in Judge Pozner’s time on the bench, that there may be a successful lawsuit against e360′s attorneys for legal malpractice.

Of course, no one knows how a panel will rule until they issue their ruling. But, I would not be shocked to find the damages dismissed in their entirety, or reduced to some nominal amount, such as $1.

If you listen to the mp3, the “interesting” part begins at approximately minute 16.

Image via Wikipedia

Lots of time and space has been dedicated to an examination of Canada’s new anti-spam law.  And we have been watching it too.  For a general overview of the law, I would suggest reading Al Iverson’s ExactTarget blog post about it. Today, though, let us consider a burning question in the eyes of marketers: “Does this law apply to me, even if I make a mistake?”

The terms of the law are pretty simple.  It covers email sent to, from, through, or accessed in Canada. The rub comes when the impact of those terms are examined.

People get used to thinking in terms of criminal law, where mens rea (or a “guilty mind”) is required as a part of a criminal act.  Then we want to pull that idea over with us to civil law and look at the intent of the actor in determining if there is actually a problem.

But, civil law is not criminal law.  There is no requirement that an action be accompanied by a guilty mind.   All that is required is that the civil statute be broken.

While American law is not Canadian law, I think that it is instructive to consider an example from our jurisprudence on this question: the trebling of damages under the Telephone Consumer Protection Act (TCPA).

The TCPA prohibits certain things including making pre-recorded telephone calls, and it includes a general private right of action. That means that if you make a pre-recorded telephone call, the recipient of that call can sue you in a court of appropriate jurisdiction for damages as set by the law.  The law also includes a section that allows a court, at its discretion, to treble statutory damages from $500 per violation to $1500 per violation, if the Judge determines that the violation was done “willfully or knowingly.”

Now “willfully or knowingly” sounds like it is a requirement to determine the state of mind of the caller, right? But, that is not true.  In a 2010 case (Sengenberger v. Credit Control Services, Inc., No. 09-cv-2796, 2010 WL 1791270 (N.D. Ill. May 5, 2010)), a judge trebled damages based upon a finding that such messages were sent voluntarily. Specifically, the judge pulled together a history to support his determination:

While the TCPA does not define willful, the Communications Act of 1943, of which the TCPA is a part, defines willful as “the conscious or deliberate commission or omission of such act, irrespective of any intent to violate any provision[], rule or regulation.” In Dubsky v. Advanced Cellular Communications, Inc., No. 2008 cv 00652, 2004 WL 503757, at * 2 (Ohio Com. Pl. Feb. 24, 2004), the court found that in the context of the TCPA, the term acting “willfully” means that “the defendant acted voluntarily, and under its own free will, regardless of whether the defendant knew that it was acting in violation of the statute.”

Notice the line “irrespective of any intent to violate” because that is important in this context.  What really mattered was that the calls were not made under duress.

So, how does all of this apply to Canada’s new anti-spam law? The only requirement found in the law is the one that we have already mentioned: A message must be sent to, from, through, or accessed from within Canada.  There is nothing in the law about registries, guesses, or intents.

If your mail file contains Canadian addresses, then the law applies.  So, it all comes down to a single question: How well do you know your recipients?

If you are following your email service provider’s rules then you probably know your recipients pretty well, and you really should not need to care much about the law anyway.  After all, our policy states that our clients “certify that they will not use rented or purchased lists, email append lists, or any other list that contains email addresses captured in any other method than opt-in.”  Marketers who are paying attention to permission will have a better idea of where their recipients are located, and even if they do not, they are complying with the biggest responsibility that they have under the statute: get permission before sending commercial messages.

On the other hand, marketers who are purchasing or renting lists have to take someone else’s word for it that permission exists and/or that there are no Canadian addresses on that list.  And worse, those who are purchasing append data have even less to work with.  Often, appended data is really someone’s best guess as to a match. Sometimes, perhaps even often, that data is spot on, but all that it takes is one mistake in a file to send to a person in Canada instead of Kansas and thus subject the marketer to liability. Why? Because all that matters is that they meant to send the mail, not that they did not mean to send the mail to Canada.

Note: I am not an attorney licensed to practice in any jurisdiction. I can only provide my own understanding as an expert in email related issues. For actual legal advice, you need to pay an attorney for his time so that the vagaries of the law as they may apply in your specific circumstances can be accounted for.

Image by wjr via Flickr

Sometimes we can get too close to something.  So close, in fact, that we take comments the wrong way so that they become insults that they were never intended to be.

A couple of years ago, a member of the postmaster staff at a large, North American ISP said to a group of ESP people: “On my list of 10 things to do today, you are number 11.”  Neil Schwartzman recalled that quote in a blog post made to Laura’s and Al’s blogs on the topic of Josh Baer’s idea of allowing email to expire.

In this week’s Magill Report, Ken Magill took issue with that quote.  “News flash for Mr. ISP man: The sole reason you have a job is because of marketing and sales. No marketing and sales, no work. Got it?”

Well, I was there when that statement was made, and I have to say that Neil keeps it in context.  Just before recalling that statement, Neil said: “Marketing email accounts for a reported 10% of the legitimate email load (in other words, everything a typical user gets that isn’t spam, rejected at the router, or by other filtering means).”

In context, the ISP representative said that his top 10 list of things to do dealt with things like:

1. Blocking mail from botnets
2. Blocking users whose computers have become part of a botnet
3. Trying to keep out mail from spammers in ___________.
4. Dealing with security issues that would pop-up around their mail servers.

And so on.  I’m not sure that he actually made it all the way to ten items, but the context was clear: Out of all of the things that can go wrong and require immediate remediation, email from ESPs and their marketing clients rates pretty far down that list.  It was, in short, a list of The Things That Can Go Very Badly Wrong Today.

So, in that context, let me say that being number 11 on that list of 10 things is a pretty nice place to be.  And I would hope that Ken would agree.

Earlier today I asked a couple of questions on Twitter:

1. “How does one go about transferring permission?”
2. “Why do marketers buy ‘opt-in’lists?”

The first question did not get many answers.  The consensus of those who took the time to respond was that permission might be transferred in an assets purchase. Beyond that, it would appear that people who follow my Twitter feed don’t think that permission is transferable.

The second question got a bit more discussion.  Answers ranged from the serious (“Because purchased lists fit the model that pre-Internet marketing used? I.e., opt-out “cold call” direct marketing?”) to the inane (“competitive drive to waste more money and accrue more blacklistings than the competition..”).

As I was considering the answers given, a new question formed itself in my mind: When discussing permission in messaging what is the difference between an appended list and a purchased list?

I suppose the most easily noticed difference between them is randomness. What is often referenced when discussing a “purchased list” is a list of names and/or addresses that have no prior connection a company.  In theory, when an appended list is created the names on the list have some form of connection and then an append company is hired to try to get addresses matched to those names.  But, is this not a form of buying addresses?

I cannot, however, disregard the fact at my fingertips: Appended lists drive complaints at almost the same levels as purchased lists.  Appended lists gather the same type of complaints about lack of prior permission that purchased lists gather.

In fact, from an operational standpoint, I cannot tell much difference between them.  So, dear reader, do you consider appended lists to be a form of purchased lists?  Why or why not?

Nothing says “I disrespect you” like the phrase “talk to the hand.”  It does a few things.  First, it makes the speaker look juvenile, as this was something that we did in high school almost 20 years ago.  Second, it says that speaker’s mind is closed.  Third, it says that the conversation is over.

Did you know that you can do the same thing when communicating with other people?  There are at least a couple of ways to do this:

1. Use noreply@ or placing “Do not reply to this address.  This email was sent from an address that does not accept replies” in the body of your message.  This is telling your recipients that you think that email is a broadcast only medium and that you feel that they have nothing to add.
2. Being insulting. This one I saw on Twitter today. Someone responded to (legitimate) criticism of what they were doing by saying “What I’m doing is better than what your clients are doing!”  That is not a means of advancing the propriety of your own practices.  Being better than someone else does not make it you good.  It just makes you better than someone else.  It was also intended to be insulting toward the target of the statement.  How do you intend for the discussion to continue when you just insulted the person you were discussing things with?  You don’t.  But, this isn’t limited to Twitter.  It happens in everyday speech, too.  And, it happens in email.  You do this in email when you pretend that you know what your recipients want better than they do so that you force mail on them that they never asked for.  In other words, when you refuse to ask for or abide by their preferences.  It is insulting to them.

What say you, dear readers?  What other ways can marketers tell recipients to “Talk to the hand” whether that is what they are intending to say or not?

HAPPY NEW YEAR!

On Friday, we looked at the bottom 10 posts of 2010.  Today, we look at the top 10 posts of 2010. As with yesterday’s list, the posts in this list were determined using Google Analytics’ determination of page views for posts written in 2010.

1. White Paper: Top 10 Delivery Tips for 2010. I have to admit that I was pushed into writing this paper, but it has stood the test of time.  As I noted in my 2011: The Year We Still Don’t Make Contact post, my advice for 2011 looks just like my advice from 2010.
2. SORBS Blocks Gandi.net. The DNSBL that everyone loves to hate blocked a large, well-known registrar. Some changes have happened since then, such as the dropping of the requirement to pay a fee for delisting. But, Steve Atkins at Word to the Wise has put up a six part series wherein he makes the argument that GFI/SORBS is harmful.
3. An Average Email User Responds. My dad cracks the top ten list for the year at #3.  This post was the second part of a two parter dealing with Gretchen Scheiman’s MediaPost post declaring that consumers want people to disregard permission and market to them anyway.  My dad is a really smart guy.  If you didn’t check out his thoughts, please do.
4. Settlement in Comcast v. e360insight. If you were watching David Linhardt try his best to fail by suing everyone who dared to suggest that his company’s email was unwanted, then you saw this one.  After suing Comcast, he ended up caving completely to them.
5. Which Experts Do You Listen To? This was a fun blog post about determining who you listen to and refer to as an expert.
6. The Most Wrong-Headed Thing I Have Read Today. This was the first part of the two parter that my dad finished up in grand style (see #3). I don’t think that we can ever underestimate the importance of permission so I felt I needed to speak up when someone suggested that we can just disregard it.
7. “The Recession Has Forced Us To Drop This Etiquette.” This was ultimately a post about Netprospex. As it turns out, this post was one of several this year dealing with the supposed death of permission. My last blog post was a response to some of the things we see here.
8. Guest Post: Your Problems Are Bigger Than You Think. This post came about as a result of a discussion I had with another email consultant.  They were frustrated because people fail to see that sometimes the business model is, in fact, the problem.  You cannot keep doing what you have always been doing and expect better results when you keep getting told that what you have been doing is the problem.
9. Somebody Hasn’t Read All of the CAN-SPAM Act. This was my post on the Holomaxx lawsuits against those who might dare to block their mail. The basis of the suit appears to be that since they follow the law that no one can legitimately block their mail.  The CAN-SPAM Act reads differently.
10. The Legal Status of Feedback Loops. This was a post that was fun for me to do.  I love thinking about and talking about the intersection of email and law.  So, when I was asked to come up with something to share at a MAAWG General Meeting, I threw this post together here and shared a copy with the person who asked for my thoughts.  My only sorrow about this is that I was not able to attend that meeting.

Everyone else is busy publishing their top 10 list of posts for 2009. I’ll do that tomorrow, but I figured that today, I would start by looking at the bottom 10 posts. These would be ones that you may have missed.  The posts in this list were determined using Google Analytics’determination of page views in reverse order for posts written in 2010 and disregarded generic links (like monthly archives or some of the Twitter aggregation posts that happened at the beginning of the year).

1. Letters to the C Suite. This was a recommendation post. Not much to it, and if you missed it, you just missed me saying that you should go read something else.
2. No One Wants to Hear 100% Marketing. Marketers love to market, but recipients hate it when people look at them as walking wallets.
3. Quote of the Day. Sometimes someone will say something that is just so perfect. Deborah Krier managed to pull that off in a comment on MediaPost’s website.
4. Have you updated your Goodmail settings yet? Goodmail lost its preferred relationship with Yahoo, something which was announced late in 2009, but actually took effect in March of 2010. This post was a reminder that domains involving “yahoo” were not the only ones affected.
5. Can I Help You? We can find lessons in a lot of places.  One of the places I drew lessons from this past year was the time that I spent training to become a Nationally Registered First Responder.  What is the difference between helping someone and assaulting them?  Find the answer in this post.
6. R-E-S-P-E-C-T. This post happened as a result of my getting a look at some boilerplate used by someone, somewhere to contact ISPs for help remediating delivery problems.
7. Thoughts From Connections 2010. I was working as a consultant for the first six months of the year, but got picked up by ExactTarget in July.  Long story short, I went to Connections 2010, ExactTarget’s user conference, in October.  This post had a few of my thoughts that I could dash out over my iPhone while sitting at DFW.
8. How Easy Are You To Reach? One of the things that I hate seeing most in email is the noreply@ address or a statement in the email that says “We don’t care what you think. Sit down, shut up, and listen to what I have to say!”
9. Asking for the Impossible: Reputation. This was the forth part of a series of posts outlining things that clients ask for, but can never get from their ESP or email consultant.
10. That Don’t Impress Me Much. Your business model? The one that you are executing so flawlessly that you need help getting your vital business marketing mail delivered? Yeah, I have seen that one before.

[UPDATE: Fixed this to reflect year-long stats, not just those from the month of December. Ooops!]