Click-wrap licenses again

Earlier this week ARS Technica reported on a ruling from the Missouri Court of Appeals stating that terms and conditions are enforceable even if the users are not forced to visit the T&C pages. Judge Rahmeyer, one of the panel members, did point out that the term in question, under what state laws the agreement would be enforced, was not an unreasonable request. She “do[es] not want [their] opinion to indicate that consumers assent to any buried term that a website may provide simply by using the website or clicking ‘I agree.'”
What does this have to do with email? Well, it means that reasonable terms in the agreements may still be binding even if the user does not read the full terms of the opt in before submitting an email address. In practical terms, though, there’s very little that has changed. Hiding grants of permission deep in a terms document has long been a sneaky trick practiced by spammers and list sellers. Legitimate companies already make terms clear so that users know what type of and how much mail to expect by signing up to a list. They also know that the legal technicalities of permission are not as important as meeting the recipients expectations.

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Permission: it may not be what you think it is

I’ve talked frequently about permission on this blog, and mentioned over and over again that senders should correctly set expectations at the time they collect permission. Permission isn’t permission if the recipient doesn’t know what they’re agreeing to receive.

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Permission Based Emails? Are you sure?

Yesterday I wrote about the ReturnPath study showing 21% of permission based email does not make it to the inbox. There are a number of reasons I can think of for this result, but I think one of the major ones is that not all the mail they are monitoring is permission based. I have no doubt that all of the RP customers say that the mail they’re sending is permission based, I also have no doubt that not all of the mail is.
Everyone who sends mail sends permission based email. Really! Just ask them!
In 10 years of professionally working with senders I have yet to find a marketer that says anything other than all their email is permission based. Every email marketer, from those who buy email addresses to those who do fully confirmed verified opt-in with a cherry on top will claim all their email is permission based. And some of the mailers I’ve worked with in the past have been listed on ROKSO. None of these mailers will ever admit that they are not sending permission based email.
Going back to ReturnPath’s data we don’t really know what permission based email means in this context and so we don’t know if the mail is legitimately or illegitimately blocked. My guess is that some significant percentage of the 20% of email to the probe accounts that doesn’t make it to the inbox is missing because the sender does not have clear recipient permission.
When even spammers describe their email as permission based email marketing, what value does the term have?

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The legitimate email marketer

I cannot tell you how many times over the last 10 years I’ve been talking to someone with a problem and had them tell me “but I’m a legitimate email marketer.” Most of them have at least one serious problem, from upstreams that are ready to terminate them for spamming through widespread blocking. In fact, the practices of most companies who proclaim “we’re legitimate email marketers” are so bad that the phrase has entered the lexicon as a sign that the company is attempting to surf the gray area between commercial email and spam as close to the spam side of that territory as possible.
What do I mean by that? I mean that the address collection practices and the mailing processes used by self-proclaimed legitimate email marketers are sloppy. They don’t really care about individual recipients, they just care about the numbers. They buy addresses, they use affiliates, they dip whole limbs in the co-reg pool; all told their subscription practices are very sloppy. Because they didn’t scrape or harvest the email address, they feel justified in claiming the recipient asked for it and that they are legitimate.
They don’t really care that they’re mailing people who don’t want their mail and really never asked to receive it. What kinds of practices am I talking about?
Buying co-reg lists. “But the customer signed up, made a purchase, took an online quiz and the privacy policy says their address can be shared.” The recipient doesn’t care that they agreed to have their email address handed out to all and sundry, they don’t want that mail.
Arguing with subscribers. “But all those people who labeled my mail as spam actually subscribed!!!” Any time a mailer has to argue with a subscriber about the validity of the subscription, there is a problem with the subscription process. If the sender and the receiver disagree on whether there was really an opt-in, the senders are rarely given the benefit of the doubt.
Using affiliates to hide their involvement in spam. A number of companies use advertising agencies that outsource acquisition mailings that end up being sent by spammers. These acquisition mailings are sent by the same spammers sending enlargement spam. The advertiser gets all the benefits of spam without any of the consequences.
Knowing that their signup forms are abused but failing to stop the abuse. A few years back I was talking with a large political mailer. They were insisting they were legitimate email marketers but were finding a lot of mail blocked. I mentioned that they were a large target for people forging addresses in their signup form. I explained that mailing people who never asked for mail was probably the source of their delivery problems. They admitted they were probably mailing people who never signed up, but weren’t going to do anything about it as it was good for their bottom line to have so many subscribers.
Self described legitimate email marketers do the bare minimum possible to meet standards. They talk the talk to convince their customers they’re legitimate:

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