Does CAN-SPAM Hurt Compliant Marketers? Part 1

Want to hear something outrageous?

Since CAN-SPAM took effect just over a year ago, we’ve seen our clients’ delivery and open rates drop. When email does get through, it works just as well as it did before CAN-SPAM, in some cases even better. Unfortunately, less email is getting past gatekeepers. We think we know why.

According to an MX Logic study:

  • 97 percent of unsolicited commercial email (UCE) still flouts the law.
  • 75 percent of all email sent in 2004 was spam.

The law intended to deter spammers actually did the opposite. ISPs have been forced to implement tighter spam-filtering rules to better serve their customers, shutting out law-abiding email marketers.

We legitimate email marketers follow the letter of the law, making sure we use the best practices it’s based on. We do this to comply with the act and because it’s ethically right.

Government enforcement hasn’t played a very big role in the situation thus far. ClickZ’s Pamela Parker wrote that one FTC official said the FTC is “likely” to start prosecuting legitimate companies who aren’t in compliance with the CAN-SPAM Act. Although the FTC so far has focused on fraud in its anti-spam enforcement efforts, with occasional dabbling in pornography, that may be about to change.

So far, so good. Yet there are two disturbing trends:

  • CAN-SPAM doesn’t deter the bad guys who refuse to play by the rules.
  • Increasingly more legitimate, compliant email is blocked and filtered.

Talking With Jane Kaiser

I recently spoke with Jane Kaiser, president of Eclipse Direct Marketing. She’s in the acquisition email marketing trenches every day and has much the same take on the situation.

Soltoff: Is CAN-SPAM hurting the email marketers you work with?

Kaiser: While the law in and of itself was, and still is, very much needed, CAN-SPAM is contributing to the decline in email marketing revenue on two important levels. First, the government is selectively enforcing the law by only going after high-profile cases so that the public is reassured that measures are being taken to reduce the problem. At the same time, the FTC and Department of Justice are slowly moving forward, spam abuse continues to grow.

Soltoff: It appears after all this time, they haven’t gone after all the no-name guys who clog our mailboxes.

Kaiser: Pretty much. We also see that a number of companies are receiving bad legal advice regarding the correct interpretation of the law. The net result is that individual marketers are building overly complex messages to be CAN-SPAM compliant. The reality for today’s marketer is that the more complexity associated with a message, the greater the likelihood that an ISP will filter out that message.

Soltoff: I agree. We’re troubled at times on how to work with ISPs to improve deliverability for our clients because the rules change every day. Have you seen anything from the ISPs to help the cause?

Kaiser: There exists a subtle adversarial relationship between ISPs and all email marketers — both responsible marketers and spammers. The ISPs have built their filters in such a way that most common, best-practice marketing phrases are being identified and subsequently suppressed. Increasingly, marketers are finding that in order to get a message past an ISP Bayesian filter, the marketer has to dumb-down the message to such an extent that the recipient has a hard time associating the message with any particular brand.

Soltoff: They’re rendering email practically useless, wouldn’t you agree?

Kaiser: Yes. From an economic standpoint, it’s understandable why the ISPs would not see any difference between responsible email and spam. All commercial email, both responsible email and spam, is an expense for ISPs to deliver, both in processor time and in customer service support, to respond to the “vocal minority” that issue complaints. At the same time, the ISPs are not compensated for their efforts.

Making CAN-SPAM More Effective

This isn’t necessarily CAN-SPAM’s fault, but how ISPs respond to the law. Other internal reasons encourage filtering email that should be delivered.

Here’s what must be done:

  • Establish one set of standards for all ISPs to follow for filtering and blocking email.
  • Establish a standard registry of legitimate email marketers allowed by all ISPs, just as there are domain registration standards and postal change of address rules.

Until both happen, CAN-SPAM will continue to hurt the good guys and spur on the bad guys.

In part two, some best practices to ensure improved deliverability.

Keep reading…

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