The recession has made citizens more attentive to scams, especially those that promise easy money or frighten people about the banking system.  This accelerates the already large regulatory agenda of the US Federal Trade Commission (FTC), whose role as a “civil prosecutor” includes regulating and enforcing protections from online offers, advertising and email marketing.  Congress is also stepping up, and two major initiatives around privacy protection and the role of the FTC are in active play.

Partnering with all of us in the email industry, and watching to make sure we self-regulate well, remains a key component of the FTC’s plans, says Lois Greisman, Director, Division of Marketing Practices for the FTC Bureau of Consumer Protection, who joined the second annual DMA/Email Experience Council legislative update webinar on May 19th.  “Our goal is to stop fraud and scams as quickly as possible, to shut down offenders, and, where appropriate, seize assets and reimburse consumers,” she said in the webinar.

The recording of the full event isfree for DMA/eec members: 

The US CAN SPAM Act of 2003, which regulates permission practices for email marketing, continues to be a key anti-fraud tool for the FTC.  Greisman noted several successes in prosecuting spammers and other deceptive practices and said enforcement continues to be a major priority.  “CAN SPAM has worked well to level the playing field among legitimate online marketers,” she said.  She also added that she was not aware of any active proposal by the FTC or Congress to expand or change the law.

However, there are two active proposals of new legislation that could have significant impact on email marketing and the email industry as a whole.

1. Online Privacy Protection Bill: 

A “Discussion Draft” of a bill to require notice and consent to any individual PRIOR to collecting or using personal information was released in early May in the US House of Representatives from Representatives Rick Boucher (D-VA)and Cliff Stearns (R-FL).  Industry and consumer groups alike are not happy with the draft, including the DMA.  Although it may seem at first that the so-called Boucher Bill was just about online behavioral advertising conducted by large marketers; it turns out that it’s very broad and far-reaching on privacy and data security.   In the webinar, Jerry Cerasale, VP, Government Relations for the DMA, gave a very good overview of coverage, exceptions and terms of notice.  Basically, it impacts nearly all kinds of “first party” senders as well as any other company that has access to that data as a “third party.”  It proposes coverage of an extensive list of “unique and persistent” personal data on consumers.

“One potentially bad impact this could have on the email industry concerns the scope of covered data, including email address, IP address, and other unique, persistent identifiers,” says Tom Bartel, CIPP, vice president,  Receiver Services at Return Path, a panelist in the webinar.  “If the exceptions for transactional and operational purposes and for service providers are not effective and clear, this bill could interfere with many industry collaborations.  This includes IP-based reputation systems – data that determines if email messages reach the inbox or not.  It may also impact the operation of Feedback Loops provided to email senders by mailbox providers like Yahoo! and Hotmail.  These feedback loops are a key component in how the industry keeps bad actors out of the email ecosystem.”  

Both Representatives Boucher and Stearns have indicated a willingness to work with industry and have requested comments on the bill,  The DMA has already commented, Cerasale said.

2. Expansion of FTC Powers: 

Congress is also considering significantly expanding the powers of the FTC as part of the Wall Street Reform and Consumer Protection Act (HR 4173).    There is not a corresponding bill in the Senate, although Cerasale said in the webinar that one may be introduced later this year.   

Part of the proposed regulation would give the FTC “unbridled authority” to create rules around “unfair or deceptive acts or practices” for many industry sectors.  Cerasale expressed concern about this, and said that more checks and balances are needed.  It is also unclear how this expansion will impact emerging technologies like social or mobile, he said.  

Another part of the proposed bill increases the FTC’s enforcement powers to seek civil penalties. “That may be helpful in catching spammers and other abusers of email marketing,” said Rick Buck, CIPP and VP, ISP Relations and Privacy at e-Dialog in the webinar.   “Marketers who feel they are exempt from prosecution because they are legal under CAN SPAM may be following the letter of the law, but not the spirit.  I encourage everyone to go beyond the legal requirements and aim to provide email experiences that are welcome and engaging to subscribers.”

The FTC’s Greisman said only that, “We welcome any support from Congress that helps the agency be more effective and efficient.”  There are some “tools that we lack which Congress may grant us the power to use,” she said.

A third element to this proposed legislation is on responsibility/liability of the delivery provider (broadcast vendor, ESP, MTA Vendor) if their clients do not follow CAN SPAM or other regulations.  “This aiding and abetting aspect is very concerning,” said Dennis Dayman, VP, Privacy & Online Security at Eloqua,another panelist in the webinar.   “Blurring the lines between purveyor and sender may place an undue penalty on others in the ‘chain of responsibility’ for all brands involved in online advertising or other online acquisition efforts, like third party email senders and publishers,” Dayman said.

Greisman also reported in the webinar that there is no significant update on the behavioral targeting protection guidelines that the FTC has had out for comment for over a year. “Nothing will happen without input from industry,” she said.  Since the mandate from the FTC has been, “self regulate or else,” the webinar panelists gave a number of suggestions for marketers to follow best practices, including:

1. Ensure transparency in disclosure and notice of permission and use of data
2. Be very clear about opt out vs. opt in.  CAN SPAM requires only an opt-out, but that is the “bare minimum,” Buck advises.
3. Update your Privacy policy and provide prominent links
4. Audit your data usage practices
5. Be clear on use of data in all web forms and at the point of collection/sign up.

Marketers and everyone in the email industry can support the FTC, Greisman said.  She suggests:

1. File a complaint. When those complaints are also referred by the DMA, they are particularly helpful, Greisman said.
2. Make sure your opt out mechanisms are working.  (E-dialog’s Buck recommends checking this at least annually, and preferably monthly.)
3. Be clear about the sender and the advertiser relationships.  (Return Path’s Bartel recommends first party senders consider “framing” the content from third parties or advertisers and clearly distinguish between editorial (original content) and advertising.)
4. Keep data clean, particularly around new sources.  (Eloqua’s Dayman also recommends care around affiliates’ use of data.)

The legislative update webinar was sponsored by Eloqua, E-Dialog and Return Path, with technology sponsor GoToMeeting. The recording of the full event is free for DMA/eec members.  More details on these and other legislative issues important to digital and direct marketers is in the DMA’s quarterly government affairs newsletter, Politically Direct.

There is a growing subculture emerging in the Email Industry.   This narrow subculture is built around the role of the Email Deliverability consultant.  These email folk heroes often hold “silver bullets” that dramatically alleviate problems caused by poor email deliverability.  Whether it’s resolving sender reputation issues, aligning sectors of your email program to meet legal compliance, or ensuring that all technical considerations are met, these masked magicians with assistants named Tonto can help.

There seems to be a critical knowledge gap that needs to be addressed.  Often the requests to hire an industry “folk hero” (consultant) originate from a marketer who wants to fully optimize the organization’s email program.  Factors that optimize programs include, but are not limited to, list quality and data collection, increased open rates, better ROI tracking, and achieving optimal inbox placement rates.  As much as marketers might want an optimized program, they often do not fully recognize the technology challenges of getting email delivered to achieve these desired results.   When that happens, for certain organizations, it’s time for The Email Deliverability Consultant: Email’s Lone Ranger.

A Marksman who gets his hands Dirty

Depending on the scope of the project, these consultants offer a wide range of deliverability services, including, but not limited to a deep understanding of list quality and data collection, email authentication best practices, setting up FBLs, bounce handling and infrastructure.  Consultants also commonly help with sourcing, installing and configuring optimal specs for both commercial and open source MTAs.  Frequently, the scope of the project grows into in-depth consulting on email engagement, response or retention campaigns or designing strategies that integrate complimentary marketing channels such as mobile platforms and social media.

Masters of Disguise

As we know, consulting by nature is a feast or famine type career.  And often, email deliverability consultants are positioned in precarious situations and exploited by bad actors.  Suspect senders often pump consultants for information on where to find responsive email lists or, even worse, ask about revealing key contacts at Yahoo, or other ISPs.  Deliverability consultants’ clients largely come from referrals and word-of-mouth.  That said, they live by a strict moral code of conduct, because they sometimes face important ethical decisions; at times, they must choose between a paycheck and literally firing a client. 

The Audit Process

The Audit Process is a “state of play” snapshot of the deliverability climate within the organization.

Usually, deliverability consultants will require answers to a set of detailed questions  and an analysis of overall infrastructure (technical setup) before any type of contract is in place.  During the audit, clients may seed consultants on different types of emails (marketing, transactional, etc) where they could begin reporting on items such as blacklist status, reputation, authentication tests, content, and inbox placement rates, etc. Consultants will then try to identify trends within the email list, such as attrition rates, opens, clicks, and sign up rates.   Some feedback is then given to the client, but deliverability consultants generally need to access additional data, such as bounce handling, FBL monitoring, send rates, and identifying email streams.

Contracts

A typical contract is somewhere between 30-90 days, with ongoing support in place.  However, most organizations are likely to add to the scope of services and have other goals in mind beyond deliverability.  These days, organizations that have prevalent stakeholders will go to great lengths to gain an edge over their competitors.  So, in many cases, an ongoing contract can grow out of the original short-term agreement.

The behemoths in our industry are companies like ReturnPath , Pivotal Veracity (Unica) and Goodmail which is widely known for certified inbox placement.  These companies collaborate extensively with established ESPs and large enterprises.  However, below I’ve listed a few other respected industry resources, the majority of which have over a decade of email deliverability experience.   Each has experience with organizations that range in size from ESP startups to F500 corporations.

In their work as Email’s Lone Rangers, these consultants can most often revive a company’s deliverability afflictions, so that key members of the organization can hop back in the saddle without too much damage done to its sender reputation. 

This article was inspired by:

· Jaren Angerbauer, DeliveryVision

· Andrew Bonar,Emailexpert

· Micky Chandler, Whizardries

· Greg Kraios, Den of Deliverability

· Laura and Steve Atkins, Word to the Wise

 

"Hi-yo, Silver, away!"

 

Fred Tabsharani

Port25 Solutions, Inc.

@tabsharani

As you might have heard, Return Path Certified Sender has launched some industry changes to their certification program.

Beginning On April 30, 2010, Certified status will no longer be available for email streams strictly comprised of 3rd party marketing. These email streams will be eligible for Safe status only, continuing to receive a level of benefits and reporting not available elsewhere. All other 1st party content will be eligible if not already for the certified status. 

"Third party marketing" is defined as email-based advertising that is not accompanied by content and is sent on behalf of a different company than the one to which the end user subscribed in the first place. You can read the details of the new standards here.

The Return Path certification program offers two levels of trust: Safe and Certified. The level is determined by a sender’s business practices and reputation performance metrics.

If you have ANY customers or programs that are of a 3rd party nature and are in the certification program today, they should have been notified already about this change to the Safe list. If those customers or programs have a mix of 1st party and 3rd party content, then they should be carefully reviewed, segment those content pieces onto separate IP space, and ensure each stream is added to the appropriate program at Return Path.

-Dennis
Eloqua

Don't Just Send, Deliver!

They say curiosity killed the cat. Apparently, no one is saying that loudly enough to stop consumers around the globe from clicking on spam.

Nearly half (43%) of email users in North America and Western Europe say they have knowingly opened or accessed spam – including clicking on links or opening unknown and potentially dangerous attachments, according to a new global consumer survey  from the Messaging Anti-Abuse Working Group (MAAWG).  Of those who open spam, about half (46%) did so intentionally – to unsubscribe, out of curiosity or out of genuine interest in the products being offered.  This is consistent with findings from the same study’s 2009, but not an increase in such behavior.

The  2010 MAAWG ‘Email Security Awareness and Usage Report’ was released yesterday (March 24, 2010).   Consumers were surveyed in North America and across Western Europe with a variety of questions from computer expertise and savvy, to their preferences of email.

Several of the findings are both shocking and disturbing.  Consumers seem generally unaware of the consequences of their actions, and a painful percentage continue to click on spam, knowingly, instead of deleting it immediately. Such actions help explain the gargantuan increase in botnet presence on the Internet and zombie’d computers continue to steal millions of bits of personal and confidential business information as a result.

Clearly, we as an industry have an opportunity to do more education for end users of email.  Several of us at Return Path will be working with the good folks at MAAWG and other industry associations to develop programs that we hope can be embraced by marketers as well as mailbox providers and anti-spam professionals.  We'll keep everyone informed of ways to participate.

In other findings, four out of ten users responding to the survey do click the report spam button (39%) or move spam to their junk folder (44%).   One in five say they report the message to the sender, if it’s recognized as a legitimate company.   These findings are pretty consistent between North America and Western Europe.  Younger users both consider themselves more experienced in terms of email security, but also more likely to engage in risky behavior like clicking on spam. 

Marketers know full well the pressure on response rates from the excess clutter in the inbox.   However, users who responded to the survey say that they use the senders’ name (73%) and the subject line (67%) to identify spam in the inbox.    Respondents also say that unusual language, the content of the email, the “from” name or address, and spelling mistakes and poor grammar are signs that an email may be spam.  This is true in all six countries included in the survey, although respondents in Spain and France are less likely to rely on these factors.

Email marketing is still a great opportunity and users surveyed do find marketing messages valuable.  They are just not as welcome as other kinds of personal email.  When asked about what various types of email they prefer, one-to-one communications still rule the roost. Messages from friends and family were ranked as ‘extremely or very important’ to 82% of respondents, but marketing email was only rated similarly by 15% of those surveyed.  Another 32% did view marketing mail as ‘somewhat important’.

Consider these findings in context with our shared goals:  To ensure that valued messages reach the inbox and unwelcome messages – especially the dangerous ones – do not.   Marketers, email service and technology providers, mailbox providers and security vendors all share this goal.

Please take a look at the full survey, and share your reactions and thoughts in the comments section below.

(Thanks to Neil Schwartzman of Return Path for his co-authorship of this post!)

Good news today was posted by Return Path. For those using Return Path Certified, you now will receive automatic image and link enabling at both Hotmail and Yahoo!

What do you have to do to get this privilege at Yahoo?

1. Be a Certified level member in the program. Apply right now.
2. Have IPs that are rarely, if ever, suspended from the Certified list 
3. Authenticate your email with Domain Keys and/or DKIM and have unique domain/selector pairs dedicated to your Certified IPs
4. Submit domain [d=] and selector [s=] values associated with your Certified IPs

Pretty simple I say. This should help anyone in the program to clearly communicate their value proposition and provide your customers the best possible experience.

Congratulations Return Path and Yahoo! for making this a reality. Membership DOES have its privileges.

-Dennis
Eloqua

Don't Just Send, Deliver!

Good news for those who are on the Return Path’s Certification program. RPost and Return Path announced a partnership today where Return Path’s Certification clients will now be able to access an integrated offering where your outbound messages can incorporate RPost’s proof of delivery technology with the Return Path’s Certification service.

For those who don't know them, RPost provides the sender legally valid and court admissible evidence of email correspondence occurring directly from the sender’s desktop email client or from other applications which will provide a sender with evidence of delivery, content, and timing of any document or notice sent by email, without requiring recipients to download any software, click links, or visit special websites to open and read messages.

--MORE--

-Dennis
Eloqua

Don't Just Sender, Deliver