I heard some muttering a couple of weeks ago over a Mediapost article suggesting that the email marketing arena is full of incompetent, potentially criminal idiots.  The hand-wringing and whining has centered around the choice of tone for that article.  If Mediapost was looking for some publicity out of this, they certainly got it.

In the comments section of that article, we see some complaining about painting everyone with the same brush.  And, hey, no one likes to be lumped in with another group.

The thing that we have to be aware of is not only that we are guilty of the same thing, but that so is everyone else.  Don’t believe me?  Well, then, read on.

First of all, think about yourself.  When was the last time that you referred to “the receivers” or “the receiving community”?  That’s this broad brush that we don’t like to be painted with.  Not all receivers are the same.  Not all administrators at all ISPs or other receivers would make the same decisions given the same set data.

Second, understand that the brush is wide for a reason.  The people who make filtering decisions spend all day long looking at data, only that data.  When you consider the data that they are looking at, there are two or three common characteristics to large percentages of it:

1. It is marketing.
2. It is phishing.
3. It is illegal (whether that be virus-laden, or mail that doesn’t comply with CAN-SPAM).

And there one characteristic it all shares: It is generating complaints.

And I can hear many of you saying, “But, that doesn’t describe MY mail!”  And that may just be true.  But, there is another question that I hear from people at filter providers, and ISPs:

“What are you doing to convince everyone else to do things right?  When are you standing up to everyone who is wanting to do things wrong?”

And by “everyone” they actually mean “everyone.” They mean friends, colleagues, and competitors alike.

Not long ago, I got a message from someone saying that they liked how I was willing to call someone out who was offering bad advice.  And I’m flattered that someone feels I’m influential enough to compliment me like that, but I have to wonder….

Why do we spend so much time talking our companies and ourselves up, and giving ourselves fun group names like “snob” and “gurus” than we do calling out the bad ideas and talking about how they’re bad or calling up the great ideas and talking about how they’re good — even if our competitor is doing it?

Do you want people to stop painting all email marketers with the same brush?  Then draw a steep, deep, dark line showing what you think best acceptable practices are.  Then hold everyone to it, friend and competitor alike.

Al Iverson, my good friend, asked me to have a look at a question asked on Twitter by @drdigipol about DNSBLs and advocacy groups.  Here’s the question (in case you don’t feel like following the link):

Question re SPAM Blacklist Services: What r policies re advocacy orgs that send email not covered by CAN SPAM (i.e. 1st Amend protected)?

There are some important understandings missing from this question.  First of all, there is this terrible misunderstanding of the status of advocacy groups.  Advocacy groups do not enjoy greater First Amendment protections than the average citizen.  Second, the CAN-SPAM Act of 2003 does not impact DNSBL policy at all.

If you want to rephrase the question into something that makes a bit more sense, it needs to look like this:

Question re SPAM Blacklist Services: What r policies re email not covered by CAN SPAM?

When we phrase it that way, we can see the obvious answer much more quickly: The policies are whatever the policies are.  You can visit their websites and see what those policies might be.

But, that’s not what our petitioner really wanted to know.  We learn that from the rest of the thread here.

1. @drdigipol: Question re SPAM Blacklist Services: What r policies re advocacy orgs that send email not covered by CAN SPAM (i.e. 1st Amend protected)?

2. @drdigipol: @MarkatEMR What r ur thoughts about advocacy groups protected by 1st Amend/not covered by CAN SPAM having email blacklisted?

3. @MarkatEMR @drdigipol Not a lawyer, but guess 1st amen’ rights give no immunity to blacklisting by *private* orgs/networks (e.g. ISPs)? Try @aliverson

4. @drdigipol: @MarkatEMR TY Mark. @aliverson Ur thought re advocacy groups getting blacklisted for SPAM even though not covered by CAN SPAM law?

5. @aliverson: @drdigipol non profit spam is still spam. No legal basis to say “you can’t blacklist me.”

6. @drdigipol: @aliverson What about blacklists that use double opt-in criteria?

7. @aliverson: @drdigipol What about them? Are they run by the gov’t? If not, then how does 1st amendment apply? They’re not widely used, either.

8. @drdigipol: @aliverson Since political/policy speech protected by 1st Amend, seems blacklisting advocacy orgs that don’t use dbl opt-in is problem.

9. @drdigipol: @aliverson I realize prvt companies can filter what they want, but not everyone using blacklists understand what is being blocked.

10. @drdigipol: @aliverson Many advocacy grps use single opt-in via action alerts & follow SPAM law anyway. But I heard NJABL.org blacklisted anyway.

11. @aliverson: @drdigipol you need a new lawyer.

12. @aliverson: @drdigipol I am also forced to ask, what does CAN-SPAM have to do with spam blacklists? I’m not seeing any reference to them in the law.

13. @drdigipol: @aliverson Let’s be clear… I am doing research for the field, not dealing w/ any specific case. No lawyer involved or needed.

13. @drdigipol: @aliverson CAN-SPAM defines what constitutes SPAM legally. Services blacklisting email that isn’t SPAM, but protected free speech is problem

14. @drdigipol: @aliverson Even if those services r prvt/not gov, that they blacklist orgs doing 1st amend protected outreach is a fundamental problem.

15. @aliverson: @drdigipol i.e. it is entirely irrelevant that a certain type of mail was not contemplated by CAN-SPAM but might still be blacklisted.

16. @drdigipol: @aliverson It’s 1 thing if indiv org blocks email from source, but services doing it 4 many clients very is different.

17. @aliverson: . @drdigipol Start with Comcast v e360. “Comcast is a private enterprise and has no obligation to honor the free speech rights of e360.”

18. @drdigipol: @aliverson I understand that prvt co’s have no obligation to honor speech rights. But what makes sense isn’t just about legal obligations.

19. @drdigipol: Regardless, many thanks for letting me pick your brain. Very helpful.

So, we need to rephrase the question yet again, so that it asks the question that is actually on @drdigipol’s mind:

Question re SPAM Blacklist Services: What r policies re advocacy orgs that send 1st Amend protected email?

This doesn’t change the answer to the question.  DNSBLs are allowed to set their own policies and abide by those policies, and there are no First Amendment considerations to be made, as Al correctly points out by quoting Judge Zagel who referenced a 1973 Supreme Court case in e360insight, LLC v. Comcast Corp., 546 F.Supp.2d 605, 611 (N.D. Ill. 2008), (“Comcast is a private enterprise and has no obligation to honor the free speech rights of e360. C.B.S. v. Democratic Nat’l Comm., 412 U.S. 94 (1973). “). C.B.S. is important here because you have someone who wanted to cause their political message to be disseminated by a private entity.  In C.B.S., they tried to make that happen using the Fairness Doctrine and the First Amendment. And the Supreme Court held that the First Amendment covers governmental actions, not the actions of private entities — even in cases of political speech. That means that this has been settled law since about the time that email was invented.

That said, Congress has passed two laws which touch on this area. The first is the CAN-SPAM Act of 2003.  Yes, that CAN-SPAM Act of 2003. 15 USC 7707(c) reads:

Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.

What is the practical effect thereof? ISPs are allowed to block whatever they will, no matter what definitions they choose to apply.

The second is the Communications Decency Act of 1996 (CDA). Yes, THAT Communications Decency Act of 1996. 47 USC 230 gives us the key provision:

No provider or user of an interactive computer service shall be held liable on account of–

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Of the two provisions the one in the CDA is the most well tested. The most tested part is the definition of “interactive computer service.” The key cite here appears to be Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.2003), for that definition.  For instance, it was relied upon in an unpublished opinion by California’s 4th District in Pallorium v. Jared, no. G036124, slip op. at 12 (Cal. Appl. 4th, January 11, 2007), to find that Jared was immunized by the CDA as an interactive computer service while he was running the Osirusoft DNSBL.

The CDA, then, generally provides the list provider with enough legal cover that there is no case against them for failing to carve out exceptions to their listing policies for people sending out email in the furtherance of political or religious ends.

Ultimate, our pleading plaintiff falls back to “just because they’re not breaking the law doesn’t make it right!” Which may be good theoretical argument.  There are lots of things that aren’t right, even if they may not be violative of some statute.

All of that said, there is not a fundamental problem at work here.  Yes, communication is more difficult for advocacy groups if they must obtain permission before sending email or run the risk of getting blocked.  But, the system is not broken.  There are lots of other ways to get the word out — and solicit people to voluntarily join a mailing list for future emailed updates.

The people over at AlchemyWorx put out an article today with this post’s title: “Getting real about inactive subscribers.” About all that I can say about it is that it is a “feel good” article.  The entire point of the post seems to be to help email marketers feel good about inertia.  Why should they feel good about inertia?  Because “you don’t know” (a phrase used twice in the piece, but hinted at on at least 6 occasions).  You don’t know if people want to be removed, you don’t know if your emails are generating sales in other channels, you don’t know what your recipients really want.

The answer here, of course, is simple: If you don’t know, find out. Now, the execution of that strategy might be a touch more difficult, but the answer itself is simplicity.

If you are unwilling to spend the time and money and expend the effort to find out why people are not fully engaged by your email, then you need to purge people who are not demonstrating their engagement.  Letting inertia carry things through until the subscriber makes a move is usually a bad idea, because that move may not be the one favorable to your business.

So, let’s look at some of the arguments here.

For one thing, we are talking about people who have opted in to receive your communications, and who have access to the simplest possible functionality – a single, clearly labelled click – should they wish to opt out again. Simply deleting these people from your base is assuming that you know better than they do what they want.

The fact is that “a single, clearly labelled (sic) click” is the exception rather than the rule.  Responsys’s 2009 Retail Email Unsubscribe Benchmark Study noted that a plurality (39%) of unsubscribe processes took 3 clicks to accomplish.

Not only that, but we often engage in proactive, protective measures. When someone reports a single mailing to a feedback loop partner, we remove them from the list entirely.  But that person didn’t take advantage of the ability to opt-out, and you could make the argument that the marketer doesn’t know if it is just that mailing that the recipient found to be spam-like, or if the recipient was just labeling all of the mail in their inbox as spam to clean it out (and yes, that does happen).  It’s still the right thing to do.

So we’d disagree with the tendency to refer to long-term inactives as “emotionally unsubscribed”. The term puts an unnecessarily negative spin on email marketing, implying that the inactivity is somehow the fault of the sender. Many of us are perfectly happy to keep on receiving marketing emails without opening them (or not often). We may be busy, or we may open them much later from our archive, or we may simply be waiting for the right email to come along. . . .

In fact the more you think about it, the more long-term inactivity appears as perfectly normal, even the default mode for many subscribers. After all, how often do you actively interact with a marketing communication – of any kind, in any channel – from a car dealer, insurance company, real estate agent, consumer electronics retailer or hotel chain? Why then should email marketing be any different?

Email is a different medium than any other.  Long-term inactivity may be normal, but means that you need adjust what you are doing to what the recipient wants. There is a reason why consultants like me don’t start and stop with the advice to purge inactive subscribers.  List segmentation and listening to and setting recipient expectations are also important parts of the mix.

Again, this is a point where you have to wonder why inertia is a good thing.  Getting great results in email comes as a result of putting time and effort into what you are sending, figuring out who you are sending it to, and why you are sending it.  If you are not willing to put the time, effort, and money into figuring out how to do things the right way, why are you in this business?

After all, some 35% to 55% of your list will not have interacted with your emails for between 6 months and a year. These are people who do want to receive your emails, but don’t need your content or offer – yet. But they’re happy for you to keep putting stuff in front of them, and if you remove them you’ll never know if you missed another sale.

Assumptions are inertia’s greatest allies.  Here we see two of them at work:

1. All of your inactives want to receive your messages.  The fact of the matter is that there will be some inactives who want to continue receiving your mail and are just waiting for the right offer to come along.  But, there will also be a good percentage of those inactives who are inactive because they don’t care.  They don’t care about you or your offers.  No offer that you send will ever be acted upon.
2. Not mailing your inactives means lost sales. The assumption here is that inactives are buying using other channels.  Instead of clicking through to your website, they are visiting your bricks-and-mortar storefront or calling the operators that you have standing by.  The key to understanding these sales is that you need to figure out a way to quantify those patterns.

You cannot afford to stake your reputation on assumptions, especially assumptions that tell you that inertia and the status quo are the right way to go.  If you are going to leave some or all of your inactives in your active file, you need to be basing that upon data, not inertia.

Most of the time, when someone engages my services they are already suffering from reputation problems and they need help to get that fixed.  Removing inactive subscribers is one part of that process. Holding tightly to the status quo because I just don’t know about that one sale I might be losing is not.

Why? Because blind inertia is not doing email marketing correctly.

Today’s is the fourth in a series of posts on contractual terms that clients want to try to get, but usually will be unable to get due to the harsh impact of reality. So far, we have considered Delivery Service Level Agreements, Inbox Guarantees, and Send Rates. Today, we turn our attention to the topic of reputation.

It seems that some people want to come up with a contractual requirement that the ESP create a positive reputation for all of their space.  That’s both correct and incorrect.  It’s because of the incorrect aspects of it that you are not likely to get this included in your contract.

But, let’s start by looking at how it is correct.  An ESP has a reputation as an entity.  That reputation is based upon a number of items.  Those things will include the general character of mail that all of its clients send, how responsive the ESP is to abuse reports concerning their clients, and a myriad of other such issues.

Rarely, some (very small part) of that reputation will be based on the person behind the curtain.  The one that they see at industry events and conferences.  This is mainly going to be tied to ESP responsiveness to ISP concerns and how well that representative can move the ESP in a friendly direction.

That reputation will not get the ESP out of being blocked.  It won’t generally get blocks removed or filters changed. What it might get is some blunt talk about where problems lie and the benefit of the doubt when the ESP sends their representative to say “We’ve fixed our problems.”

But, while the ESP has an institutional reputation, it will not be the main factor is determining reputation.  The main factor in reputation is going to be what email the ISP is getting from you.  That’s right. You determine most of your own reputation.  And, there are lots of things that you can do to improve or impair your reputation. Things ranging from how you put your list together, to how your email is put together, to the time it takes you to truly remove someone from your mail file all have some form of impact on your reputation.

It is this part that will keep reputation guarantees out of ESP contracts.  They cannot make you engage in best practices (although they can decline to do business with you if you won’t), and if those best practices are not followed, then as a rule, you can expect that your mail will take a reputation hit that no contract can fix.

Today’s is the third in a series of posts on contractual terms that clients want to try to get, but usually will be unable to get due to the harsh impact of reality. Thus far, we have considered Delivery Service Level Agreements and Inbox Guarantees. Today, we turn our attention to send rate guarantees.

Occasionally a company will try to get an ESP to agree to send rate guarantee. The terms of the contract amendment will usually look something like this:

The ESP will insure that all mail is delivered to the Client’s recipient list within 60 seconds of the time that the Client queues it.

Now, that seems to make some sense. The client obviously thinks that the mail they are sending is important, both to them and perhaps to the recipient. Because of this, they want to see it delivered in a timely manner.

For some mail, this even makes sense. For instance, Woot.com has some time-sensitive deals on their site. It makes sense that they would want to see their mail delivered well before the deal expires.

So, why do terms like this not fly? Again, it has to do with the reality of the email space. Email is not an instantaneous medium. Things can happen fast, but they don’t have to. Most mail transfer agents (mail servers) are setup to stop trying to send mail after three or four days. There is a reason for this default behavior: the reality of the Internet is such that things may take some time to happen.

As we have been mentioning on previous days, there are lots of things that can go wrong. Not everything will mean that a message can never be delivered, but it may mean that it cannot be delivered in the next minute, hour, or even day. Things along this line would include:

1. Under sea cables being cut. You might remember that in early 2008, this happened to several cables.
2. Mail servers being down. From time to time, the connection cannot go through because the mail server which is receiving the email is not receiving any email.
3. Poor reputation. If a sender has a poor reputation, their messages may be blocked, but they could also get deferred for a period of time, perhaps even until off-peak hours for the receiving server.
4. Technical issues. This post from the AOL Postmaster Blog points out that a server may not be down, but still may not be receiving mail at expected rates.
5. Rate limiting. Some ISPs use rate limits to help make certain that things do not get backed up too much on their systems. This may be tied to poor reputation, but does not have to be.

There are, of course, other things that could contribute to not being able to send all of the mail you want to send as fast as you want to send it. But, all of these things combined mean that it is unrealistic to expect an ESP to agree to send mail with anything other than “best effort.”

Yesterday, we had a look at Delivery SLAs as a contract term that you are unlikely to get out of an email service provider. Closely linked with the Delivery SLA is the Inbox SLA, more commonly referred to as the Inbox Guarantee. This is a contractual term that many people try to impose upon an ESP that the ESP will make sure that a certain percentage of mail will be placed in the inbox, as opposed to the spam or bulk mail folder.

I have seen this proposed contract provision take three forms. Under one form, the percentage is figured using the complete total sent. This would result in a bounced email counting against both the SLA and the Inbox Guarantee. The second form figures the percentage against the total number accepted. The final form of this proposed contract provision does not specify how the percentage will be calculated. (For internal purposes, ESPs should treat this one as the first form.)

There are just far too many things outside of the ESP’s control to allow for agreement to that contract term. For the first (and third) forms, all of the arguments from yesterday’s post still apply. And there are still more obstacles to overcome getting into the inbox.

Getting an email into the recipient’s inbox on a consistent basis takes doing a lot of things right. It takes the ESP running a clean, tight ship. They cannot be allowing spammers to use their services. This will cause negative reputation problems across their system. One client’s mail can be negatively impacted by another client’s poor practices. It is up to the ESP to police their network and get rid of the deadwood before that becomes an issue.

It also takes the receiving system’s cooperation. Sometimes things go wrong over there. Yesterday, I mentioned someone accidentally including an ESP’s IPs in their block list. I have seen it happen more often that the wrong URL will get put into the filter instead. This is generally an outgrowth the last paragraph. There is something in common (like a “powered by” or “sent using” button at the bottom of the email) that has remained in the same in all of a “bad” client’s email’s that is also the same as what is in the “good” client’s emails. ISPs generally know enough about that that they try to avoid listing those buttons in order to reduce false positives. But, it happens. Now, all of the ESP’s mail to that provider is getting sent to the spam folder.

It also takes the recipient’s cooperation. Things that go wrong at the ISP generally start by things going wrong at the recipient level. ISPs do not generally pick IPs or domains to filter at random. They select what they will filter based upon user feedback. The provider will then tune their filters to that feedback. Mail which has the same characteristics as the mail complained will get sent to the bulk folder.

A lot of this also remains in the client’s hands. If the client is not sending mail that people want, then the ESP’s hands are tied. They cannot force the mail through, nor can they force it into the inbox.

And then we get to the question of monitoring. This is generally specified by placement statistics from a delivery monitoring company, or if the client is trying to be cheap, the client’s own seed accounts. Now, don’t get me wrong, I think that delivery monitoring companies are great for getting general ideas. What they are not great at is figuring out the real percentage of mail that is delivered, received, and placed because they are not looking at those numbers — only the ISP can see those statistics. All of the delivery monitoring services set up seed accounts which the client mails to and looks at the results from. But those results can change, sometimes even mid-send. That is just a limitation of the system. I have seen some who have attempted to get around this limitation by seeding with user names beginning with different letters throughout the alphabet. But, mail is not always sent alphabetically by user name.

So, what good are they then? Well, they will help you generally figure out if there are problems in need of resolution. But, were I running an ESP’s delivery team, I wouldn’t agree to allowing something that will give you general ideas determine whether we are meeting a contractual obligation to get 99.99996% or more of email into the inbox. The numbers are just too tight for that. There are too many things that can go wrong.

Just a few days ago, I wrote that I cannot give a guarantee that an intervention on my part will get you removed from a DNSBL. Why? Because I won’t agree to terms that will bind me to making someone use do something.

I figured that I would follow that up by looking at some contractual terms that your mail consultant and/or ESP will stay away from. Today I would like to have a look at the delivery service level agreement (SLA). A delivery SLA is a contractual term that states that the ESP will guarantee that some percentage of mail will be delivered to recipients. It takes its genesis from the uptime SLAs that ISPs and other providers regularly give to customers doing “mission-critical” things that require that their machines be online and accessible.

Yes, your ESP knows that your ISP is willing to guarantee you 99.9999999999999% uptime. Often, though, companies think that they can get an ESP to guarantee that a certain tremendous percentage of their messages will get delivered. But, remember that your ISP does not guarantee that you can reach a particular website 99.9999999999999% only that their equipment will be up so that you can try. The reasons why you might not be able to reach a website include lots of things that the ISP has no control over, like the website’s system or ISP being down. Similarly, ESPs can only tell you that they will have their systems up to make an attempt, and some do that.

However, an ESP cannot tell you that they will guarantee a certain percentage of email will get delivered. There are too many other things involved to make that kind of promise. Things like:

• The receiving mail server could be broken and not receiving mail from anyone.
• An administrator could have typo’d a block/filter string.
• An undersea cable could have broken meaning that it is impossible for the ESP’s mail server to reach the recipient’s servers on the other side of the ocean.

…And, well, you get the picture. But, perhaps that most important reason is that the ESP generally will have very little control over the message that you are sending. If you, the client, are not careful then your mail stream will suffer from poor delivery as a result of poor reputation. As Laura points out concerning reputation:

ESPs, ISP Relations experts and delivery consultants can guide a sender through the process of repairing reputation. But the only thing that will actually improve reputation is changing sending practices.

If you are not sending mail that people want, then no ESP in the world is going to be able to promise you that your mail will get through.

Stay tuned. Next time, we’ll talk about Inbox Guarantees.

I unsubscribed from a mailing list recently. When I did, I was confronted with the following message:

We’re sorry to see you go.

You should be aware that it could take up to ten business days to completely remove your address from our lists.

That’s a pretty standard disclaimer that complies with the time limits put in place by the CAN-SPAM Act. So, what’s the big deal?

The “big deal” wasn’t anything that I thought about until last Friday. It was then that I saw a tweet. Hoon Park said something that really resonated with me:

I try to unsubscribe, but if you continue to send me email, I will mark you as spam. I’m not sorry if it messes up your deliverability.

Now, thinking back to that disclaimer I saw, I noticed that there is a potential problem there.

When my dad unsubscribes from something, he expects that to be immediate. I suspect that your dad, your mother-in-law, and your weird Aunt Millie would all agree with that, even if they have never agreed on anything else, ever before, maybe in their entire lives. So, when he gets that next email it’s spam to him, and he’s not afraid to tell his provider so.

But, the law says that you have 10 days to remove his address.

Perhaps it would be helpful if we stopped thinking of that window as an opportunity to make a little bit of revenue before the fun comes to an end. Maybe it would help if we started looking at that ten day window as an opportunity to stop damaging our reputation.

Why? Because that recipient thinks that they have tried to opt-out. And they really aren’t sorry if your reputation is damaged because you mailed them some more during that 10 day window.

Many of the things that I write about come about because I’ve been talking with colleagues or just looking at what is coming in my mail reader. On an average day I receive around 1,000 emails. Much of it is spam that never gets looked at, but many of the messages are from mailing lists, but others are from clients, prospects, friends, and then there are those from my wife’s business venture which sends me receipts for products sold and requests for assistance. It takes me a lot of time to get through my email and I see lots of examples of what not to do.

If you wonder why your open and click rates are not what you hope them to be, perhaps there is a good lesson for you: It is really easy to be angry. In fact, it is much easier to be angry than it is to be impressed. I get a lot of email, and with few exceptions, I spend only a few seconds on each one. Most email gets a pass (I don’t care enough to do more than glance, but I don’t unsubscribe). Of the email that gets a response, I tend to be angry about what see because best practices aren’t being followed, or I notice that a former client is now selling my test addresses to other vendors.

It takes something truly wonderful to grab my attention and make me take a closer look. And, unfortunately email like that does not come around very often. It is why I always try to take a moment to read when someone points out a campaign that they think is really doing it right. And it is also why the majority of my posts are about people doing it wrong.

So, if you want to help me be a more positive person and I’m on your mailing list already (please, I get enough email as it is without people adding me to their lists without my permission), do me a favor and really work on doing things right.