To fight spam, focus on permission and not content

Business Journal of the Triad, 4/22/04

Last summer I wrote about the problem of spam email and predicted that newly-signed anti-spam legislation in the state of Virginia would have little impact on the problem (And before you brush this off because you think that our northern neighbor is just 1/50 of the solution, remember that they have unusual clout - more than 1/3 of all Internet traffic flows through commercial networks in the state and is thus subject to the law.). I noted that spammers can easily hide their identities; further prosecutors were unlikely to assign a high priority to pursuing them. It was a nice gesture designed to placate constituents, but not much more.

Since then we've seen the addition of the federal CAN-SPAM law, which took effect January first of this year, as well as a continuing raft of civil suits against spammers. CAN-SPAM is, on the surface, an encouraging measure. It seeks to define not only spam but legitimate email messages and the responsibilities of those who send them. CAN-SPAM is backed by stiff penalties - penalties that are only as good as the enforcement behind the law.

As you might expect the total effect of all this anti-spam activity has been - well, pretty underwhelming. The proof is in our inboxes; downloading one's email is likely to validate the lack of hard evidence that spam has been reduced. Meanwhile there's plenty of anecdotal evidence that it's on the rise. I'm not particularly surprised that the worst kinds of spam continue to pour into my inbox, but I am surprised  that companies that don't fit the profile associated with typical spammers are continuing to send email that is, under the spirit of state and federal laws, spam.

The letter of the CAN-SPAM law - to focus on the statute with the most reach - is fairly complex and many senders of commercial email are still trying to interpret how it affects their businesses. But one key provision - and this is the spirit of the law - is quite simple: Before you may legally send anyone a commercial email message, you must have their explicit permission to do so. No permission, no email.

Yet, while permission is at the heart of anti-spam regulation, many companies, or the individuals from those companies who market with email, are choosing to define spam by content, and not in terms of permission. The result is that many companies ignore the need to obtain permission from the recipient and continue to send messages that are spam, within both the letter and the spirit of the law. Their logic? As long as the email isn't selling pornography, prescription medication or something that offends them, it can't possibly be spam.

As I recently pointed out to a very nice local businessperson who used that logic to spam me with an unwanted mass solicitation, this is wrong. I hadn't asked to have her find or borrow my email address and add it to her database, so the fact that she was sending me offers by email made her, according to the CAN-SPAM law, a spammer. This message didn't go over particularly well, I'll note. Nobody wants to think of themselves as a - shudder - spammer.

However, I'm neither a lawyer nor an anti-spam zealot, so what interests me about this phenomenon is what is says about how some marketers view and misuse email. At its best, email is an interactive tool for building relationships. At its worst, it's simply a cheap replacement for other broadcast media. There's a tremendous difference in effectiveness between the two approaches.

Smart email marketers are scrupulous about getting and maintaining recipients' permission. They don't share email addresses with other companies. And they pay particular attention to what their customers value. This customer-centric view creates opportunities to engage in a dialogue with customers, incrementally gain a database of valuable information about them, and conduct trusted transactions. It's hard work, and the marketer's convenience and needs are secondary considerations. But the payoff can be excellent; in campaigns that my colleagues and I have managed, we've seen consistent increases in open rates and click-through rates of broadcast emails, while seeing rates throughout the industry continue to fall.

And then there are the folks who believe that their email cannot be spam. They generally ignore the need to gain permission, share list member data with other companies, and treat email as a cheap, convenient alternative to direct mail or broadcast media. As long as no one complains there's little incentive to reform, and since they are not measuring their use of email, they are blissfully unaware of whether the medium is working for them, or damaging relationships with potential customers. Meanwhile, they add to the inbox clutter that we all dislike.

If there is any surprise here, it is the fact that many in the business world seem to believe that anyone else is the cause of the spam problem. They would do well to think about what they're doing before sending that email that can't possibly be spam.