Marketers and enforcers alike think legislation like the Senate's Can Spam bill is a good idea. But while the Do-Not-E-Mail registry provision is a winner with voters, the pros say it's a loser.
Rank and file voters are all in favor of a national Do-Not-E-Mail list and would no doubt crash government servers trying to sign up, just as they did for the Do-Not-Call list. The pet project of New York Senator Charles Schumer, plans for a national list of people opting out of all unsolicited commercial emails made it into the Can Spam Act the Senate passed Wednesday.
Marketers and the Federal Trade Commission gave the act mixed reviews.
"It's great news for our industry. This is a really positive step forward and suggests we will see federal spam legislation this year," said Trevor Hughes of the NAI's E-mail Service Provider Coalition (ESPC). "It's good for two big reasons. It provides a consistent standard across the country that state and federal officials and ISPs can enforce. Second, from my group's perspective, it gives us a consistent and predictable platform to base our businesses practices on."
The Do-Not-E-Mail provisions, however, are viewed as more problematic. But Hughes sees hope in the fact the bill calls on the FTC to first report back to Congress on the feasibility of building such a list.
"We're concerned about the Schumer amendment, but comfortable that the FTC has indicated on many occasions that they do not think it is a good idea, and that enforceability is problematic at best," said Hughes. "We are hopeful that the FTC will provide a report to Congress consistent with Chairman Muris' position."
Even players trying to build technology solutions think the bill is a good thing. "I think [the legislation] is good, because legitimate emailers will have a code of conduct to follow. But there are way too many spammers that are not legitimate," said Roger Matus, CEO of Audiotrieve, maker of an anti-spam product. "People outside the U.S. will still send email to anyone within the country and violate all the various rules. As long as there's a country to move to, spammers will set up shop and email you."
Lou Mastria, spokesperson for the DMA, echoed the argument and expressed special concern about the Schumer amendment. "Do-Not-Call works because a preponderance of people making telemarketing calls are legitimate companies," he said. "The preponderance of people creating 80 to 90 percent of spam are... located in a basement somewhere. They have no assets to protect and no reason to abide by the law." Mastria said if a Do-Not-E-Mail registry goes into effect, "As a consumer, you'll have less email in your inbox from a company you would do business with and virtually unfettered access to your email inbox for spammers."
Many fear that creation of the Do-Not-E-Mail registry would be a great tool for spammers. "I have already heard rumblings that spammers outside of the U.S. are looking forward to the Do-Not-Spam registry because they can obtain a list of valid email addresses from the government for free," Audiotrieve's Matus said.
Brian Huseman, a staff attorney for the Federal Trade Commission, said that stakeholders were still debating how access to a Do-Not-E-Mail list should work. Telemarketers pay a fee to access the Do-Not-Call registry and have to certify under penalty of perjury and criminal prosecution they will only use the list to scrub their own lists. Telemarketers can get up to five area codes free, and pay $25 a year for each additional area code, up to a maximum of $7,375 for the entire U.S. database. A similar structure could be used to access a Do-Not-E-Mail registry.
Huseman said there were several additional issues with a Do-Not-E-Mail list. The list would need to be secured from hacking, and the database would probably be huge. "There are more email than telephones, and they change more frequently," he said. "It would be a large and expensive undertaking." But the main problem, Huseman said, was enforcement. "It's hard to track down who is sending email because of fundamental differences between mail and email. And consumers will have greater expectations for the Do-Not-E-Mail list."
Kathy Gogan, vice president of marketing for email marketing company Responsys, said that the need to comply with new regulations would hurt smaller email delivery companies. "There are a lot of little players in the email blasting business, and anti-spam laws focusing on deliverability are going to make it hard for smaller players to compete," she said.
Business-to-business marketers feel they're in the dark about whether, or how much, proposed anti-spam laws would apply to them.
"If I can supply a real solution to a business' need, and I'm not allowed to contact it, that puts a severe restriction on our ability to function," said Jeff Beliveau, CIO of Consumer Networks, an online marketing and promotions company. Indeed, the bill's definition of spam makes no distinction between an unsolicited commercial email sent to a single person or to a million people. "[According to the bill,] I cannot find a name on a 'Contact Us' portion of a Web site and spend three hours crafting a document personalized to the recipient. What about names in a business directory? Acquired at a trade show? Can someone email me a resume? Perhaps not."
At least the Can Spam bill, as opposed to California's S.B. 186 anti-spam bill, does not allow for individuals to bring civil suits for damages against spammers. Instead, federal or state attorneys and ISPs would be allowed to file criminal charges.
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Susan Kuchinskas has covered interactive advertising since its invention. The former staff writer for Adweek, Business 2.0, and M-Business covers technology, business and culture from Berkeley, CA.
March 19, 2014