Whatever one might think about confirming opt-ins I think we can all agree that requiring someone to jump through hoops and confirm an unsubscription request will just annoy that person.
Today I attempt to opt-out from a discussion list. It’s one I *thought* I had opted out of previously, but I could find no record of the request anywhere. OK. So I imagined unsubscribing, I’ll just unsub again and keep better records.
After digging through the headers, I find the unsub link and dutifully mail off my unsubscribe request. I then receive an email that requires I click on a link to confirm my unsub request. This causes me to grumble a bit. I have heard all the arguments about forged unsub requests and the various reasons this is good practice. I believe none of them. Requiring people to confirm an unsubscription request is bad practice.
In this case, the mailing list is a discussion list so there is no CAN SPAM violation. However, I know that some commercial mailing lists have also implemented confirm your opt-out request. For commercial mailing lists, this is a CAN SPAM violation. It’s also just plain rude. If someone says, “Stop!” then you should stop, no questions asked
I tell my clients that they should comply with CAN SPAM (physical postal address and unsubscribe option) even if the mail they are sending is technically exempt. The bar for legality is so low, there is no reason not to.
Sure, there is a lot of spam out there that does not comply with CAN SPAM. Everything you see from botnets and proxies is in violation, although many of those mails do actually meet the postal address and unsubscribe requirements.
One of my spams recently caught my eye today with their disclaimer on the bottom: “This email message is CAN SPAM ACT of 2003 Compliant.” The really funny bit is that it does not actually comply with the law. Even better, the address it was sent to is not published anywhere, so the company could also be nailed for a dictionary attack and face enhanced penalties.
It reminds me of the old spams that claimed they complied with S.1618.
In accordance with Bill S.1618 Title III passed by the 105th U. S. Congress, this letter can not be considered spam as long as we include: (1) Contact information and (2) a way to be removed from future mailings.
That bill was passed, but never signed into law. That did not stop spammers from adding the disclaimer to spam, though. When I was working as abuse@ we actually treated the presence of the Murkowski disclaimer (the original bill was sponsored by Senator Murkowski) as a defacto sign that our customer was spamming. It was not a bad rule of thumb, either. People who used that disclaimer usually did not have permission to send the mail they were sending. Murkowski disclaimers were common up until mid-2003, and every once in a while they will still be seen in spam.
All readers who may be thinking of actually buying SEO services, avoid Internet-marketing-one.com. They may tell you they will comply with the law, but if their spam is any evidence they do not.
Ethan Ackerman posted a rather long analysis of the class action lawsuit filed against Reunion.com over at Eric Goldman’s Technology and Law Blog. Part of the case is related to Reunion.com’s scraping of address books, something I have discussed here before.
The analysis goes through the case step by step and is well worth a read. There are a lot of issues being explored, including the applicability of CAN SPAM to “forward to a friend” email. This case also touches on CAN SPAM and preemption of state laws.
Definitely a post worth reading and a case worth keeping an eye on.
In early July, the Magilla Marketing newsletter has an article about how email preference centers may now be illegal due to the clarifications published by the FTC. Trevor Hughes of the ESPC is quoted extensively, lamenting about how marketers cannot legally interfere in the unsubscribe process.
The FTC’s opt out clarification “complicates things in that it demands simplicity when simplicity may not be the status quo,” said Hughes. “The two opt-out mechanisms that are permissible [under the law] as we understand it are a reply-based mechanism where you reply to the e-mail and write ‘opt-out’ in the subject line or body of the message, or alternatively, that you click through to a Web page [to opt out]. But it has to be a single Web page.”
Personally, I see no problem with a single web page. As I wrote about last week, forcing recipients to use a preference center to unsubscribe means that people that are not really customers cannot unsubscribe when you start sending them email.
I do not think the FTC rulings mean the end to asking for information, or even the end of offering more choices than just opting out. According to the FTC senders must allow recipients to opt out on the first page, without anything more than the unsubscribe address and the preference. The rules do not say that the marketer cannot link to another page or ask for more information on the unsubscribe page. The rules only say that marketers cannot require more information in order to process the unsubscribe.
Trevor’s complaints seem to me to be nothing more than the lamenting of a marketer that marketers MUST make things difficult for rubes recipients in order to keep recipients on their marketing lists. His statements are extremely recipient unfriendly. Of course, it is his job to advocate for marketers and not consider the experience or desires of recipients.
In the world of non-internet direct marketing, very little consideration has been given to the recipient. Direct marketers live on the mantra that if they send enough to a recipient, eventually the recipient will make a purchase. Sadly, for the poor direct marketers, recipients actually have more power against the marketer online than they do in the real world. Annoying recipients, sending offers they do not want, sending more than they want, all that works against the sender. Smart marketers will learn to adapt. Poor marketers will lament how unfair it all is.
Mickey Chandler, of SpamSuite.com has launched a new email delivery specific blog: Spamtacular.com. He moved a number of posts from his other blog, but today has a new post up about how a prior business relationship impacts compliance with CAN SPAM. He concludes with:
for most people is that prior business relationships don’t matter. Content is still king. If your content furthers the expectations set originally, then you’re fine. If your content is general marketing, then it doesn’t matter how well established, how deep, or how long your relationship with the recipient is, your email still has to comply with CAN-SPAM in all of its particulars.
Declan McCullagh writes today about the VA anti-spam law being overturned by the state supreme court.
What’s notable about this law, and what made it vulnerable to First Amendment challenge, are two characteristics. The first is that it applies to the falsification of e-mail information, which could sweep in both spammers and, say, someone using a pen name or pseudonym. And we know, despite efforts under way at a United Nations agency, that the First Amendment clearly protects anonymous speech.
The second characteristic is that the law regulates both commercial and noncommercial e-mail, meaning that political speech would be covered as well. (Now, it’s not clear that commercial speech deserves to be treated as a second-class citizen, but courts have generally said it’s OK to slap more regulations on it.)
As many others have said, too, what Jaynes did is a violation of CAN SPAM, but his prosecution pre-dates the implementation of that law.
