For the last several months, I have been noticing an uptick in the numbers of people who are noticing that their mail is not getting though, and what is getting through is going into the bulk folder.  In the past couple of months we have also seen Spamhaus taking a greater notice and showing a greater willingness to list ESPs on its famous blocking list.

There are three things driving this:

1. Complaints. Believe it or not, people do complain about spam, they just don’t always do it to you. Rather they tell their providers that they don’t like what they’re seeing. Those complaints are factored into IP reputation metrics by some providers and a “fingerprint” of the message may be factored into content filtering.
2. Engagement. We’ve been saying for years that ISPs are taking notice of what their clients are doing with your mail. We are now seeing some pretty firm metrics that indicate that not getting rid of people who don’t care about your mail has a detrimental effect on your ability to deliver mail to the inbox. Now, I’m not saying that ISPs are tracking clicks, but recent experience indicates that continuing to mail people who are refusing to even view your messages has an impact over the medium to long terms.
3. Unclean lists. Who engages the very least with an email marketing campaign? People who never asked to be mailed in the first place. Using purchased, rented, or appended lists is a sure way to drive low engagement statistics and high complaint rates, for the perfect storm of points 1 and 2 to drive decreased delivery.  Right behind that is going to be assuming that permission lasts forever. Sometimes people don’t want mail anymore, so take some time to ask people who haven’t responded in a year or more if they still want to get your mail.

So, what does this mean? Simply that the space has to grow up. When you were a kid, you could run to mama and get her to make everything better. When you grew up some, mama started making you solve some of those problems yourself.  The same is true here: You can’t run to your ESP or an ISP and expect them to “make everything all better.”  They both expect you to take some responsibility for what you are sending and to whom you are sending it.

So, the next time that you have an issue, take some time first to examine what you are doing to minimize complaints and the use of unclean data, and what you are doing to drive engagement.  Take some responsibility for what you are doing. Your ROI, your ESP, your recipients, and their ISPs will all thank you for it.

I also think that this ties into recent discussions regarding whether “best practices” are actually the best things for folks to do on a regular consistent basis.  Consider this quote from Andrew’s article:

In addition, the general rule of thumb for X amount of time has long been 6 months.  Not sure who made that rule up or all of us (me included) who have used it as gospel over the last several years, but 6 months cannot be further from an industry standard.  There are so many factors that need to be looked at: seasonality, product mix, previous engagement metrics, time to inactivity, trending etc….that 6 months is no longer the standard.

I know who came up with that: it was someone who specialized in reputation repair.  The purpose of this “general rule of thumb” has nothing to do with reactivating subscribers and everything to do with quickly fixing a problem that was leading to loss of revenue.

This is the difference between triage and planning. I teach CPR and First Aid (something I’m qualified to do all the way up to Wilderness First Responder). In my more advanced classes, we study and apply the START algorithm to sorting victims in a multiple casualty event.  When you are engaged in triage using START, there are four possible outcomes for someone that you come across who is bleeding and breathing: Minor, Delayed, Immediate Care, and Deceased. All that triage is, then, is sorting your injured into one of those buckets.  You wait on helping the Minor and the Delayed cases.  You do what you can for the Immediate.  And you completely write-off the Deceased.

The first three buckets are the easy ones, it’s “Deceased” that’s hard to call.  That’s why, in most circumstances, we want doctors to do that.  And in our training slides, we look at one scenario when you have to label a 3 year old as deceased, even though he’s probably someone who could be saved. (And, for your peace of mind, we also point out that if resources become available, you should go back and try to save that one.)  But, everyone, no matter their age or socio-economic status, has to go into one of those buckets.

When you are dealing with a triage situation, everyone is hurt.  Everyone needs care.  And the care that everyone gets is not going to be the same level of care arrived at using the same decision trees that you would find if you were sitting in your doctor’s examination room receiving your annual physical.  When you are with your doctor in an exam room, you have time and access to long-term information that allows you to make more precise decisions.  When you’re laying out in the field, unconscious and bleeding, that luxury doesn’t exist.  The people providing first aid have to rely upon rules of thumb and treatment protocols and algorithms.

So, let’s apply that to email.  When you are experiencing good delivery it’s as though you are sitting in your doctor’s examination room — you can take the time to look at various strategies for subscriber reactivation.  You can consider factors like “is an inactive someone who hasn’t opened, or someone who hasn’t purchased.”

On the other hand, when you are not experiencing good delivery, when your sender reputation has tanked and you need to turn to someone like me (or my co-workers), then neither of us has the time to engage in an extended discussion about what an inactive subscriber might be.  This is a triage situation and you’re going to experience some loss as a result of allowing things to deteriorate to this point.  The people that you are working with to fix things are likely using rules of thumb and treatment protocols and algorithms — like “an inactive subscriber is someone who hasn’t opened or clicked in the last six months.”

When you hear about “best practices,” those are generally going to be the rules of thumb, the treatment protocols, and the algorithms that get used in triaging delivery problems.  They’re good for fixing problems, and represent a minimum level care that will generally “do no further harm.”  Just as the treatment decisions made out in a field are not likely to be the same (or even the most appropriate) decisions that could be made with time to reflect and make appropriate plans, following “best practices” are probably not always going to be the best decisions for you or your business.  But, when decisions need to be made now, you need to have something to turn to.

So, what is the takeaway from this?  It’s better to do things because you planned to do them than because you have to in order to stop the bleeding.  You have better (and more granular) options, along with the time to come up with a plan to accomplish what you’re hoping to do.

The 7th Circuit has issued its opinion in e360 Insight’s case against the Spamhaus Project. The award against Spamhaus was reduced to $3. That would be a dollar apiece for defamation, tortious interference with prospective economic advantage, and actual damages.

e360 appealed the verdict claiming that the discovery sanctions that Judge Kocoras imposed were unreasonable. While all of the things that laid the groundwork were going on, some people complained to me that this was all taking too long and that the judge was giving e360 too many chances. But, in its review of the discovery sanctions, the 7th Circuit said “…we weigh not only the straw that finally broke the camel’s back, but all the straws that the recalcitrant party piled on over the course of the lawsuit” (Slip Op. at 9) Every single one of those incidents were straws, and the 7th Circuit looked through them all before concluding “Thus, it is of little consequence whether, as e360 argues is the case here, the conduct that finally drew the district court’s ire can be explained away as a simple negligent mistake. A district court may conclude that one more supposed miscommunication is just another example of a party’s demonstrated inability to take his discovery obligations seriously” (Slip Op at 9, 10).

They continue:

Even more troubling are e360’s supplemental interrogatory responses. When e360 submitted those responses, it implied that its amendments were meant only to rectify defects in its previous responses. In actuality, however, e360 had drastically amended its previous responses. It added sixteen new witnesses, and it increased its damages estimate by a full order of magnitude.

Even setting aside e360’s previous discovery delays, these changes provided powerful evidence that e360 was not engaging in the discovery process in good faith. There is no way that e360 could have believed in good faith that its last-minute disclosure of so many new witnesses and a radically inflated damages estimate was even remotely appropriate, especially as part of its belated effort to comply with a court order compelling discovery. We cannot believe that e360 first learned of all this information in the two weeks between its initial, late, and inadequate responses to Spamhaus’s interrogatories on August 29, 2008, and its amended responses on September 12, 2008. All indications are that this late disclosure was meant to prolong discovery and inflict additional costs on Spamhaus by forcing it to request additional time to depose those witnesses and learn the details of the inflated new damage estimate. e360 only reinforces this suspicion by arguing to us that its failure to comply with the district court’s July order “could have been remedied by allowing Spamhaus to conduct any [additional] discovery it felt necessary.”

With this track record, no reasonable person could conclude that the district court’s sanctions were too severe.
(Slip Op. at 10, 11)

So, all of that stuff that everyone slogged through wasn’t for naught. This, my friends, was the pay off. And, for any attorneys reading this, perhaps a practice note should be that you don’t substantially change your interrogatory responses and claim that you’re just correcting a couple of defects. You lose credibility when you do that.

Also of significance, e360 appealed some rulings on the damages prove-up. First was the ruling that David Linhardt is not an expert and was unreliable as a witness. Much of this was based upon the constant flux in Linhardt’s damage estimates at trial and how that meant that (a) he wasn’t much of an expert and (b) wasn’t even reliable as a lay witness. e360 didn’t appear to say much about reliability issue, but instead turned on the ruling that he was not an expert. They agreed that he was a lay witness and argued that the district court should have allowed his testimony in because he was held to the wrong standard (since he’s not an expert, you see). The panel deftly sweeps that away by stating “e360’s argument misses the point. The district court gave Linhardt’s testimony no weight because he was not credible” (Slip Op. at 18).

Finally, the panel looks at the actual award. There, they decide that Judge Kocoras erred by granting damages based upon gross revenue rather than profit.

The real practice note for attorneys comes from the Conclusion:

By failing to comply with its basic discovery obligations, a party can snatch defeat from the jaws of certain victory. After our earlier remand, all e360 needed to do was provide a reasonable estimate of the harm it suffered from Spamhaus’s conduct. Rather than do so, however, e360 engaged in a pattern of delay that ultimately cost it the testimony of all but one witness with any personal knowledge of its damages. That lone witness lost all credibility when he painted a wildly unrealistic picture of e360’s losses. Having squandered its opportunity to present its case, e360 must content itself with nominal damages on each of its claims, and nothing more. We VACATE the judgment of the district court and REMAND this matter with instructions to enter judgment for the plaintiffs in the amount of three dollars.
Slip Op. at 22, 23

As Laura Atkins states, “that case may finally be over.”

Apparently, Spamhaus agreed with those folks, as SBL115700 appeared on August 15.  (Currently, it says that this is the “2nd listing in less than 30 days for spam from this IP”.)

There are, of course a lot of things to say about this course of action, but one that stands out above the others.  And I found the evidence this morning in my own mail reader.

The image that you see with this post (which links to a full size version) is taken from Thunderbird this morning, and it it shows you where and how this “opt-in” email arrived in my Gmail account.  That’s right, it showed up in my spam folder, where it has sat for the last three days, unopened and unread.

Unlike a lot of people, I do actually go through my spam folder and see what gets caught.  I just happened to see this in the midst of all of the counterfeit bag/(fake) Cialis/work at home scam/(bad) porn spam.  And, the penalty for not seeing what was in my spam folder would have been to receive more email.  And I could only hope at this point that Gmail would have tagged it all as spam and dealt with it so that I wouldn’t have had to.

The thing is, if I had complained about one of those emails, Penton would have told me that I had opted in to receive the mail because I hadn’t opted out. But, you see, I didn’t opt-in, I just never saw an opportunity to stop the mail preemptively.  And I’m pretty sure that I’m not the only one that this would have happened to.

That’s why a well-run opt-in campaign will mandate that the user take action to receive the mail.  That action can take place in a number of places ranging from “at the website where they are signing up” to “click here to receive these valuable offers that we’re just now getting ready to send you.”

Email is certainly one of those places where you cannot assume that silence is consent.

Image via Wikipedia

Gmail has been busy making some changes lately and not all of them are under the hood.

One of those changes is to their user interface.  If the From: domain doesn’t match the domain of the sender, then Gmail will now display the domain of the sender as well after a “via:” notation.  So, the new format will look something like this:

Sender Name email@example.net via example.com

Here is Google’s explanation of the issue:

Gmail displays this information because many of the services that send emails on behalf of others don’t verify that the name that the sender gives matches that email address. We want to protect you against misleading messages from people pretending to be someone you know.

And the way to get rid of the “via” statement?  Authenticate.  Seriously:

Gmail checks whether emails are correctly authenticated. If your messages are sent by a bulk mailing vendor or by third-party affiliates, please publish an SPF record that includes the IPs of the vendor or affiliates which send your messages. Or, you may consider signing your messages with a DKIM signature that is associated with your domain.

So, it’s not something that I would necessarily worry about, but if you want to get rid of the “via” statement it looks easy enough to do so.

You can listen to the mp3 here.

My impressions are that e360 is likely toast. In fact, I think that there is some chance, after hearing Judge Pozner refer to the damages case put on by e360 and it’s attorneys as “grotesque”, and asking if there existed any documentary evidence to back up the damages claimed, and other bits indicating that this was one of the worst damages cases ever run in Judge Pozner’s time on the bench, that there may be a successful lawsuit against e360′s attorneys for legal malpractice.

Of course, no one knows how a panel will rule until they issue their ruling. But, I would not be shocked to find the damages dismissed in their entirety, or reduced to some nominal amount, such as $1.

If you listen to the mp3, the “interesting” part begins at approximately minute 16.

Image via Wikipedia

Lots of time and space has been dedicated to an examination of Canada’s new anti-spam law.  And we have been watching it too.  For a general overview of the law, I would suggest reading Al Iverson’s ExactTarget blog post about it. Today, though, let us consider a burning question in the eyes of marketers: “Does this law apply to me, even if I make a mistake?”

The terms of the law are pretty simple.  It covers email sent to, from, through, or accessed in Canada. The rub comes when the impact of those terms are examined.

People get used to thinking in terms of criminal law, where mens rea (or a “guilty mind”) is required as a part of a criminal act.  Then we want to pull that idea over with us to civil law and look at the intent of the actor in determining if there is actually a problem.

But, civil law is not criminal law.  There is no requirement that an action be accompanied by a guilty mind.   All that is required is that the civil statute be broken.

While American law is not Canadian law, I think that it is instructive to consider an example from our jurisprudence on this question: the trebling of damages under the Telephone Consumer Protection Act (TCPA).

The TCPA prohibits certain things including making pre-recorded telephone calls, and it includes a general private right of action. That means that if you make a pre-recorded telephone call, the recipient of that call can sue you in a court of appropriate jurisdiction for damages as set by the law.  The law also includes a section that allows a court, at its discretion, to treble statutory damages from $500 per violation to $1500 per violation, if the Judge determines that the violation was done “willfully or knowingly.”

Now “willfully or knowingly” sounds like it is a requirement to determine the state of mind of the caller, right? But, that is not true.  In a 2010 case (Sengenberger v. Credit Control Services, Inc., No. 09-cv-2796, 2010 WL 1791270 (N.D. Ill. May 5, 2010)), a judge trebled damages based upon a finding that such messages were sent voluntarily. Specifically, the judge pulled together a history to support his determination:

While the TCPA does not define willful, the Communications Act of 1943, of which the TCPA is a part, defines willful as “the conscious or deliberate commission or omission of such act, irrespective of any intent to violate any provision[], rule or regulation.” In Dubsky v. Advanced Cellular Communications, Inc., No. 2008 cv 00652, 2004 WL 503757, at * 2 (Ohio Com. Pl. Feb. 24, 2004), the court found that in the context of the TCPA, the term acting “willfully” means that “the defendant acted voluntarily, and under its own free will, regardless of whether the defendant knew that it was acting in violation of the statute.”

Notice the line “irrespective of any intent to violate” because that is important in this context.  What really mattered was that the calls were not made under duress.

So, how does all of this apply to Canada’s new anti-spam law? The only requirement found in the law is the one that we have already mentioned: A message must be sent to, from, through, or accessed from within Canada.  There is nothing in the law about registries, guesses, or intents.

If your mail file contains Canadian addresses, then the law applies.  So, it all comes down to a single question: How well do you know your recipients?

If you are following your email service provider’s rules then you probably know your recipients pretty well, and you really should not need to care much about the law anyway.  After all, our policy states that our clients “certify that they will not use rented or purchased lists, email append lists, or any other list that contains email addresses captured in any other method than opt-in.”  Marketers who are paying attention to permission will have a better idea of where their recipients are located, and even if they do not, they are complying with the biggest responsibility that they have under the statute: get permission before sending commercial messages.

On the other hand, marketers who are purchasing or renting lists have to take someone else’s word for it that permission exists and/or that there are no Canadian addresses on that list.  And worse, those who are purchasing append data have even less to work with.  Often, appended data is really someone’s best guess as to a match. Sometimes, perhaps even often, that data is spot on, but all that it takes is one mistake in a file to send to a person in Canada instead of Kansas and thus subject the marketer to liability. Why? Because all that matters is that they meant to send the mail, not that they did not mean to send the mail to Canada.

Note: I am not an attorney licensed to practice in any jurisdiction. I can only provide my own understanding as an expert in email related issues. For actual legal advice, you need to pay an attorney for his time so that the vagaries of the law as they may apply in your specific circumstances can be accounted for.

Image by Royal Australian Navy via Flickr

This morning, I got a question about some, but not all, of a mailing going into the bulk folder at a large ISP.  “What does it mean when they do that? What should we do?”

Most folks seem to think that sending mail to the bulk folder is an “all or nothing” proposition.  They know that there is a problem if all of the mail goes to the bulk folder.  And, of course, there is no problem and everyone is happy if all of the mail goes through.  But, that is not always the case.  Sometimes only some mail goes to the bulk folder.

Now there are a variety of reasons why this might happen.  I could be (but probably isn’t) a mistake on the part of the filter.  It could be a dynamic thing that happens due to complaints about that particular mailing and your next one will be fine.

Or, it could be a warning shot telling you that someone’s reputation system is taking another look at what you’re doing.  That is to say that marketers are not the only ones testing out there.  Receivers have systems that are constantly testing things to make certain that their filtering decisions are the right ones.  And if your mail stream seems to be on the cusp of the Inbox/Bulk folder divide, guess whose mail is most likely to be the subject of one of those tests?

So, what can you do? I suggest restricting mail to the most highly engaged recipients for two or three weeks while you take time to have a good, hard look at your list and all of the feedback you get from various sources.  Are people getting what they expect when they expect to get it?  Do you have some (especially older) list segments that are dead on the vine and need to be trimmed?  Consider doing a re-engagement campaign to get rid of the dead weight.

I often look at partial bulk foldering as that warning shot.  Feel free to comment with the other warning shots that you look for.

Image by wjr via Flickr

Sometimes we can get too close to something.  So close, in fact, that we take comments the wrong way so that they become insults that they were never intended to be.

A couple of years ago, a member of the postmaster staff at a large, North American ISP said to a group of ESP people: “On my list of 10 things to do today, you are number 11.”  Neil Schwartzman recalled that quote in a blog post made to Laura’s and Al’s blogs on the topic of Josh Baer’s idea of allowing email to expire.

In this week’s Magill Report, Ken Magill took issue with that quote.  “News flash for Mr. ISP man: The sole reason you have a job is because of marketing and sales. No marketing and sales, no work. Got it?”

Well, I was there when that statement was made, and I have to say that Neil keeps it in context.  Just before recalling that statement, Neil said: “Marketing email accounts for a reported 10% of the legitimate email load (in other words, everything a typical user gets that isn’t spam, rejected at the router, or by other filtering means).”

In context, the ISP representative said that his top 10 list of things to do dealt with things like:

1. Blocking mail from botnets
2. Blocking users whose computers have become part of a botnet
3. Trying to keep out mail from spammers in ___________.
4. Dealing with security issues that would pop-up around their mail servers.

And so on.  I’m not sure that he actually made it all the way to ten items, but the context was clear: Out of all of the things that can go wrong and require immediate remediation, email from ESPs and their marketing clients rates pretty far down that list.  It was, in short, a list of The Things That Can Go Very Badly Wrong Today.

So, in that context, let me say that being number 11 on that list of 10 things is a pretty nice place to be.  And I would hope that Ken would agree.