Permission is not a legal concept

One trap I see companies fall into when looking at opt-in and permission is they seem to think that permission is a blanket thing. They believe permission can be bought and sold by the companies that collected email addresses.

Legally, they may be correct. But in practice senders cannot decide that they can sell the permission of their recipients to another entity. As Al said today, you cannot buy an existing business relationship. When commenting on that post over on twitter, Evan Burke had a series of very insightful tweets on the issue.

Evan is exactly right.

Coincidentally, I had a potential client call me this morning to discuss the delivery problems they were having with a list. At the end of the call he also mentioned that they had a list of 7 million addresses that had been sitting around and they wanted to incorporate it into their list. I was open minded about the chances to recover the list, until he dropped that the list was 10 years old. I have to admit, I probably was not the cheery, positive, put a friendly face for the potential client consultant in responding to that.

But, really, there’s no way someone who opted in 10 years ago is going to remember they opted in to receive mail from whatever list has been found.

One thing that senders, list sellers and lawyers have to remember is that recipients are the final arbiters of permission. They know what they agreed to and if they don’t think this list, or this brand, or this sender has permission they will respond with spam complaints. The result is decreasing reputation for the sender followed by increasing delivery problems. Just because the sender thinks they have permission doesn’t mean the recipients agree with them.

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TWSD: Run, hide and obfuscate

Spammers and spamming companies have elevated obfuscating their corporate identities to an artform. Some of the more dedicated, but just this side of legal, spammers set up 3 or 4 different front companies: one to sell advertising, one or more to actually send mail, one to get connectivity and one as a backup for when the first three fail. Because they use rotating domain names and IP addresses all hidden behind fake names or “privacy protection services”, the actual spammer can be impossible to track without court documents.
One example of this is Ken Magill’s ongoing series of reports about EmailAppenders.
Aug 5, 2008 Ouch: A List-Purchase Nighmare
Sept 9, 2008 Umm… About EmailAppenders’ NYC Office
Sept 15, 2008 E-mail Appending Plot Thickens
Nov 11, 2008 EmailAppenders Hawking Bogus List, Claims Publisher
Dec 23, 2008 Internet Retailer Sues EmailAppenders
Feb 1, 2009 EmailAppenders Update
Mar 10, 2009 Another Bogus E-mail List Claimed
April 14, 2009 EmailAppenders a Court No-Show, Says Internet Retailer
April 21, 2009 EmailAppenders Gone? New Firm Surfaces
May 5, 2009 EmailAppenders Back with New Web Site, New Name
Their actions, chronicled in his posts, are exactly what I see list providers, list brokers and “affiliate marketers” do every day. They hide, they lie, they cheat and they obfuscate. When someone finally decides to sue, they dissolve one company and start another. Every new article demonstrates what spammers do in order to stay one step ahead of their victims.
While Ken has chronicled one example of this, there are dozens of similar scammers. Many of them don’t have a persistent reporter documenting all the company changes, so normal due diligence searches fail to turn up any of the truth. Companies looking for affiliates or list sources often fall victim to scammers and spammers, and suffer delivery and reputation problems as a result.
Companies that insist on using list sellers, lead generation companies and affilates must protect themselves from these sorts of scammers. Due diligence can be a challenge, because of the many names, domains and businesses these companies hide behind. Those tasked with investigating affiliates, address sources or or mailing partners can use some of the same investigative techniques Ken did to identify potential problems.

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Engaging recipients critical for delivery

One of the issues I have touched on repeatedly is the changing face of blocking and filtering at ISPs. Over the last 12 – 18 months, large, end-user ISPs have started rolling out more and more sophisticated filters. These filters look at a lot of things about an email, not just the content or the sending IP reputation or URLs in the message but also the recipient profile. Yes, ISPs really are measuring how engaged recipients are with a sender and, they are using that information to help them make blocking decisions.
There were two separate posts on Friday related to this.
Mark Brownlow has a great blog post speculating about a number of things ISPs might be looking at when making decisions about what to do with an incoming email. He lists a number of potential measurements, some of which I can definitively confirm are being measured by ISPs.

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Two reasons not to buy a list

Ken Magill, celebrity, has two articles today that highlight the issue with buying lists from vendors. The first is yet another article about EmailAppenders selling bad data. In this case, it is not the buyers who are complaining. According to Ken EmailAppenders are sending out email advertising they can sell Internet Retailer’s list of 2008 conference attendees. Internet Retailer is disputing this and has sent EmailAppenders a cease and desist. EmailAppenders is currently dodging Ken’s attempts to get their side of the story.
The second is an article about Zoominfo, a new group in the list selling business. Zoominfo has long been harvesting information from other sites. Now, they are offering to sell their scraped and harvested list. Their only requirement is that the buyer sign an agreement to comply with CAN SPAM. And, yes, if someone is dumb enough to buy this harvested list, they should comply with CAN SPAM as sending mail to a harvested list triggers additional penalties if or when the FTC decides to go after the sender.
Not only are Zoominfo harvesting data, they are harvesting from ancient and obscure sources. They have no current information for me, but they managed to find an email address for a job I left in 1993. They have Steve listed as an employee of “postgreSQL INC” because they harvested the postgres mailing list archives. Mickey pointed out one of Zoominfo’s sources is http://free-personal-ads-wanted-sex-partner-near-hays-kansas.themasterwithin.ca/arch/4/. You do not even need to visit that site, just look at the URL!
Zoominfo’s VP and general manager claims they send emails to people regularly, offering them the chance to opt-out. First of all, I have never received one of these, have any of you? Secondly, some of the addresses are so old opt-outs are not relevant. Finally, unless they are monitoring their delivery, which I strongly doubt given their business model, anyone buying addresses from them is going to buy lots of dead addresses. And spamtraps. Lots of spamtraps.
I am sure that people who buy and sell lists regularly will tell me that these are outliers and that most companies who sell lists have higher data collection standards. My experience suggests that these are middle of the road list brokers. They are companies who are willing to sell anything with an @ sign in it and do not care about how sending to that data affects their customers.

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