I use Zemanta to suggest possible links for blog posts. As I was writing yesterday’s blog post, a suggested link came up dealing with CAN-SPAM and the definition of “spam”. That link shows how some people just don’t get it when it comes to permission-based marketing.

Here’s the money quote:

Look, you can flame all you want about unsolicited emails, but they’re part of doing business as long as you comply with the requirements and regulations stipulated. It’s time the over-sensitive types quit designating every unsolicited email as SPAM especially when the email passes all the tests for compliance.

The Bottom Line

I’m not recommending you ever truly SPAM anyone. I’m merely stating that relevant commercial email that complies with the regulations set forth by the US FTC is NOT SPAM no matter how many times you want to cry it.

The problem here is that the word “spam” is fairly meaningless in most contexts. When I first got started working on/with the Internet back in 1997, “spam” was a word that people understood originally dealt with excessive posts to USENET newsgroups. By that time it had also come to take a similar meaning concerning email.

The Spamhaus Project says:

The word “Spam” as applied to Email means “Unsolicited Bulk Email”.

And, unfortunately, the receiving community isn’t helping. As Laura Atkins points out:

Many of the large ISPs use “mail our users complain about” as their definition. With this definition, they do not have to argue permission status with a sender. The data shows that their customers complain about mail from that sender or with that URL. The ISPs are going to block, or deliver to the bulk folder, email that their users do not want.

So now, because some creative people in Congress came up with an acronym for a law touching email which involves the letters “SPAM” we have people thinking that there is a law which defines what spam is and is not. And the result is that we have at least three operative definitions of “spam” running around (and there are quite a few others).

What our intrepid poster wishes us to understand is that email which complies with CAN-SPAM cannot possibly, under any circumstances, be considered by spam by those who receive it. The lessons eventually learned (and mentioned in the second comment) is that your provider’s definitions and rules apply, even when they are more strict than CAN-SPAM’s definitions and rules, and, if you are going to mail a purchased list, you should use some other third-party provider to send that email out and use it to feed your list (a really poor practice in and of itself). But, these are the wrong lessons to learn.

First of all, let’s start with an assumption. As a rule those are bad and we usually desire not to assume anything. However, in this instance, I think there is one assumption that is pretty safe to make: InfusionSoft did not have addresses on the list that was mailed. That is to say that InfusionSoft did not learn that their client was emailing such a list because they actually received the mailing, but rather because they had received a complaint about it from someone else who did.

Talk about getting a relationship off on the wrong foot! Here is someone who is sending mass emails out which are prompting people to complain, and is then complaining that bad things happened.

Email is about relationships, not process. That’s a phrase that I generally detest because many people who work in the area misapply the concept. They think that sending email is about the relationships that they have with people who work for some ISP or large webmail provider. In many of those instances, it’s more about process than relationships now (unlike, say, 5 years ago). When they make those contacts at the ISPs because mail isn’t getting delivered and ask for help the following two questions usually come forth: Did you follow the process? Is something broken in our process?

But, sending bulk email is, in fact, about relationships, just not that relationship. Sending bulk email is about the relationship that the sender has with the recipient, not the recipient’s ISP. The question that didn’t get asked in our post was “why were enough people complaining about what I did that my provider shut me down, even though I had never caused problems before?”

That’s a relationship issue. And that relationship issue is one that has a direct impact on your ability to get mail delivered to the recipient in a timely fashion.

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I was reading the Terms of Service for an ESP today. Under the section entitled “Affirmative Consent” we read:

Clients may only use [the ESP] to send email to individuals who have either provided affirmative consent through an “opt-in” process that they want to receive the type of email communication being sent or with whom they have a pre-existing business relationship.

We won’t get into the misnomer of calling what is, essentially, an opt-out clause “Affirmative Consent,” but here we have another example of the dreaded “pre-existing business relationship” clause. This particular one, though, is worse because of the time that they allow you to claim that relationship.

Pre-existing business relationship means, when used with respect to the initiator and recipient of an electronic mail message, that–

A. Within the 5-year period ending upon receipt of such message, there has been a business transaction between the initiator and the recipient (including a transaction involving the provision, free of charge, of information requested by the recipient, of goods, or of services); and

B. the recipient was, at the time of such transaction or thereafter, provided a clear and conspicuous notice of an opportunity not to receive further messages from the initiator and has not exercised such opportunity.

In other words, if there was a transaction at any time during the last five years, then you are fair game. You could almost make a case that Section B is a limiting factor, only it includes the amorphous “or thereafter” which would allow the sender to include the required notice along with their mail — as long as it was sent during that five year window.

This ESP here is a tiny one and likely has such a policy in order to keep some of its larger clients. But, that doesn’t make the policy the right one, nor will it help with delivery. That’s really bad news for clients of this particular ESP because it appears that they only offer a shared-pool IP setup. That means that your company’s reputation could be hurt because all of their other clients are sending mail to people they have not communicated with in the last 4 years and 11 months.

The rationale for doing things this way is that people who have bought from a company before must be interested in hearing about what sales that company is having now. In the world of print, 5 years may even be about right for a re-engagement campaign to bring those customers back into the fold. But, in the world of email, 5 years is far too long to make this assumption make any sense. People receive far more email than they receive paper mail, and adding to that flood based upon a single five-year-old purchase isn’t going to endear a sender to the recipient.

Often times, we also see CAN-SPAM compliance given as a rationale for the use of the Pre-Existing Business Relationship-as-permission given the use of the phrase “transactional or relationship message” in the statute. As I have previously explained, CAN-SPAM does not contain a “prior business relationship” clause. The “relationship” contemplated by the statute is the relationship that directly relates to a single transaction and is determined by the primary purpose of the piece sent, not some over all “sense of the mail stream.”

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When you do business with a government agency, at just about any level, you surrender a certain amount of privacy. Whatever you give to the agency is likely going to be subject to so-called “sunshine” laws that go by names like “Freedom of Information” or “Freedom of Access.” Recently, some sportsmen have discovered this the hard way since the Sportsman’s Alliance of Maine went to the Maine Attorney General and managed to force the Maine Department of Inland Fisheries and Wildlife to sell its list of licensees.

The outcry has been small, but seems to be building. Notably, Spamhaus has weighed in on the topic. Why? Because the Sportsman’s Alliance of Maine is acting like a spammer and violating what I sometimes refer to as “the Eleventh Commandment.”

What is the Eleventh Commandment, you ask? Here it is, in full King James Version English form:

Thou shalt not populate thine marketing or outreach lists with information gathered from the Freedom of Information Act nor any other Act like unto it. From thine customers who giveist thee permission thou mayst populate thine lists, and from thine business associates who giveist thee permission thou mayst, and from the stranger in thy gates who giveist thee permission thou mayst, but from the poor and the person who must transact business with thine government thou shalt not for they didst not give thee permission. It is an abomination unto thee and an unclean thing.

There are a variety of reasons for this. First, consider that sending to non-permission based lists most likely violates the terms of service of any email service provider (at least of any positive reputation) as well as any internet service provider (again, at least those with any positive reputation). You could find yourself on the shoulder of the (and I hate to use this term) Information Superhighway watching everyone else speed by.

Second, you get labeled a spammer and get your mail blocked. If you weren’t violating the terms of service of your ESP or your ISP, then you can still look forward to watching life pass by because they usually take a pretty dim view of having their resources blocked by Spamhaus and AOL and Yahoo and RoadRunner/Time Warner and…..

Third, consider the PR angle. This story came to my attention because of a reporter (whose employer’s publication I read on occasion) who had his email address sold to someone who wants to start sending him email. That reporter does not even live in Maine. And he’s now writing articles about what has been happening to his email address. That’s not a good thing, PR wise.

Finally, and flowing from the PR angle, it gives you one fewer opportunity to stick your foot in your mouth or…some other unpleasant place that I’ll leave to your imagination. That’s exactly what the Sportsman’s Alliance of Maine has done here. I couldn’t find a link to a “clean” version their response, so you’ll have to settle for this one, which features a blogger’s comments (which are pretty intelligent and well thought out) following the response. Don’t worry, I’ll wait while you go read it. Really, you should read that response if you want the rest of this to make any sense.

Now, consider this response. It seems to fall along three lines:

1. It’s legal for us to do what we did because we have laws intended to keep decision makers from making decisions while keeping people in the dark.
2. They shouldn’t have disclosed to the licensees that we had bought their information.
3. We hope you like the mail that we are definitely going to send you.

As Laura Atkins points out, they’re doing the things that spammers do. They’re just a little less sophisticated about it in that they aren’t hiding anything.

What may not jump out at you is that they tried to do this on the sly at first. They say:

A private company, InforMe, is the state’s database vendor. DIF&W’s email list is managed by InforMe and the department’s emailed messages are sent by another private company, Constant Contact. So I asked InforMe to sell DIF&W’s list of email addresses to SAM. My first request was sent in March of 2009.

That’s right my friends! They tried to buy the list from someone they thought might broker the list, and when they refused, they went the FOIA route. Do you know what spammers do? They get addresses any way they can, whether it’s by bribing someone on the inside into giving it to them, scraping them off of websites, or …. trying to pay off the database management company and launching a FOIA request when that fails.

They do spend a lot of time on point one, but their point is mainly tangential to what they discuss. They tell us that they did everything legally using laws that have used to find out about nefarious laws and stop them before they could do damage. That’s great. That’s what those laws were intended to do. I’m pretty sure that when those laws were passed, hawking memberships to organizations wasn’t a great topic of discussion in the statehouse, so how about making points that are related. Granted, the Alliance did manage to do that once by talking about postal mailings sent by politicians. That, of course, leads to a question: do you really want people equating you with that class of people? But, that’s a lesson for another day.

Second, they fault the Maine Department of Inland Fish and Wildlife for disclosing what had happened. This, to me, just reeks of hypocrisy. They have spent (lots of) words, sentences, and paragraphs talking up what a wonderful thing letting people know things is. Now, they’re complaining that the Department had the unmitigated gall to actually tell the very people whose information was disclosed that their information had been disclosed. I don’t know how they could be more hypocritical on this point if they tried.

Finally, they tell us that they fully intend on mailing this list. And if you’re on it, well then that’s just too bad, you’re going to get mailed to. “We hope you find our action understandable, and if you happen to receive emailed information from SAM, you will find it useful and important.”

I wonder what happens when someone doesn’t find it useful and important? Think they’ll let you off of the list? Given the level of insight that their statement shows, I doubt they think they need to, despite the dictates of CAN-SPAM. Of course, that’s just my impression of things given what they had to say.

This is why the Eleventh Commandment is so important. It keeps you on the right side of your service providers, it keeps you from getting blocked, it doesn’t put you in a public bad light, and you get to avoid an opportunity to make yourself look even worse by getting defensive about it.

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My mail reader is setup to not display images by default. As a result, here’s the entire email I saw in my inbox:

Let’s just start by saying “WOW! LOOK AT ALL OF THE EXCITING CONTENT HERE!”

More seriously now, there is a reason why people have been saying “Make proper use of alt tags” in your email. In this email, that hasn’t been done. So, what do we see? We see the alt tags for MySanAntonio.com itself and it’s tag line “Brings You the Latest.” But, then there’s nothing until we get to the footer. So, the footer is the exciting content.

The footer for this email consists of information required by the CAN-SPAM Act, and they don’t even get it exactly right. They appear to offer several classes of email, but only allow you to opt out of the list named “mySA – Advertising Email Offer”. Perhaps they consider all of the rest of their mail to be transactional?

Not only that, but the piece proclaims full compliance with the CAN-SPAM Act of 2003. You don’t have to look very long to find people telling you that this is a bad idea.

Also, you can’t see this from your vantage point looking at a screenshot, but they also have javascript in the mail: