Stephanie at Return Path has a great blog post on permission and how permission is an ongoing process not a one time thing. There were a couple statements that really grabbed my attention.
What really matters is not that permission was granted, but that it is earned, every time a message is sent […] Permission requires a strong value proposition.
In the comments Ulrik asks: “How can unengaged recipients hurt delivery if they aren’t complaining? What feedback mechanism is there to hurt the the delivery rate besides that?”
There are a number of things that ISPs are monitoring besides complaint rates, although they are being cautious about revealing what and how they are measuring things. I expect that ISPs are measuring things like:
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.