Who manages your e-mail program -- you... or your lawyer?
In the beginning...
It all began on March 30, 1998. First, EarthLink was awarded $2 million in an email "trespassing" case against the notorious Sanford Wallace and his company, Cyber Promotions. That same year, the states of Washington and California added new "anti-spam" bills to their dockets. These were the first hints of the coming tidal wave of anti-spam legislation that, five years later, has swamped the nation.
Today, according to spamlaws.com, 26 states have laws regulating spam on the books. Eight of these spam laws have the advertisement ("ADV") labeling requirement. Let me guess -- you forgot to add "ADV" to your subject line in your last acquisition campaign, right? Although most of those 26 states have so far not enforced these laws, there are very important precedents you should be aware of:
Some Strangeness in Utah
Thought much about email extortion lately? No? Then look in your mailbox for a letter from a law firm in Utah that demands money for spamming. All it takes is one Utah recipient to unsubscribe and not be removed from your list, and BAM! -- you’re slammed for more than $500 in fines. You can choose to fight it out in a Utah court, but you may pay that same $500 in plane tickets just to make your court date (at least it’s ski season and may not be such a bad business trip!).
And it’s not just Utah. There’s a similar situation with Iowa’s state law and a case of extortion against a marketer who mistakenly didn’t immediately honor an unsubscribe request.
Why You Should Care
Who is in charge of your email acquisition programs, you or your lawyer? If it’s you, it may be time to rearrange things. Today’s acquisition programs can easily fall afoul of any one of today’s many email laws. You must keep a tight rein on your content, list management, and dispute resolution options. Verifying the sources of email rental list collection is no longer a wish. It’s a requirement.
Have you ever run your email acquisition list request against the Direct Marketing Association’s (DMA’s) email preference service suppression file? That list is a current example of what may be several do-not-email lists that will come into being. Multiple state legislatures are following Missouri’s lead by proposing similar suppression files for you to use when planning your acquisition campaigns.
Bear with a rundown of the political food chain. Presidents are often past governors. Governors endorse U.S. senators and representatives. U.S. senators and representatives campaign with state senators and representatives, and county mayors and sheriffs endorse state senators and representatives, with constituents voting for all. Each of these elected officials relies on the next to stay in office.
What’s my point? No elected representative wants to see his legislative efforts become irrelevant.
It’s highly doubtful any federal legislation will effectively pre-empt the plethora of state email laws. State legislators are too powerful to let that happen, and the federal bills under consideration are not so strongly worded as to create a "ceiling" that entirely pre-empts the state laws. At most, a "floor" requirement will be set up. Such a floor pre-emption will mean nothing when applied to the majority of stricter state email laws.
What Should You Do About This Nonsense?
Concerned? What do you think should be done about state email laws? Send your opinions or concerns.
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Ben Isaacson is the privacy and compliance leader for Experian, overseeing Internet and advanced technology privacy and compliance affairs across Experian Marketing Services products including CheetahMail, Digital Advertising Services, and Hitwise. Mr. Isaacson's previous roles include serving as the executive director of the Association for Interactive Marketing (AIM), a former DMA subsidiary. He regularly blogs at EmailResponsibly.com.
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