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We're gonna party like it's 1996!

Over on deliverability.com Dela Quist has a long blog post up talking about how changes to Hotmail and Gmail’s priority inbox are a class action suit waiting to happen.
All I can say is that it’s all been tried before. Cyberpromotions v. AOL started the ball rolling when they tried to use the First Amendment to force AOL to accept their unsolicited email. The courts said No.
Time goes on and things change. No one argues Sanford wasn’t spamming, he even admitted as much in his court documents. He was attempting to force AOL to accept his unsolicited commercial email for their users. Dela’s arguments center around solicited mail, though.
Do I really think that minor difference in terminology going to change things?
No.
First off “solicited” has a very squishy meaning when looking at any company, particularly large national brands. “We bought a list” and “This person made a purchase from us” are more common than any email marketer wants to admit to. Buying, selling and assuming permission are par for the course in the “legitimate” email marketing world. Just because the marketer tells me that I solicited their email does not actually mean I solicited their email.
Secondly, email marketers don’t get to dictate what recipients do and do not want. Do ISPs occasionally make boneheaded filtering decisions? I’d be a fool to say no. But more often than not when an ISP blocks your mail or filters it into the bulk folder they are doing it because the recipients don’t want that mail and don’t care that it’s in the bulk folder. Sorry, much of the incredibly important marketing mail isn’t actually that important to the recipient.
Dela mentions things like bank statements and bills. Does he really think that recipients are too stupid to add the from address to their address books? Or create specific filters so they can get the mail they want? People do this regularly and if they really want mail they have the tools, provided by the ISP, to make the mail they want get to where they want it.
Finally, there is this little law that protects ISPs. 47 USC 230 states:

(2) CIVIL LIABILITY- No provider or user of an interactive computer service shall be held liable on account of–
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

There is existing case law that states that spam blocking falls is protected under the CDA, including e360Insight, LLC v. Comcast.

I’m sure if the ISPs start blocking mail users actually want, that the users will actually point this out and the ISPs will be forced to change what they’re doing. A class action lawsuit by a bunch of marketers who are annoyed their “VITAL MARKETING MESSAGES” aren’t being forced into the inboxes of unwilling recipients doesn’t seem to meet that standard, though.
Really, Marketers, is there any part of my mailbox you don’t want to control?

23 comments

  1. Brian McNett says

    It’s pieces like this, and the repeated refrain from marketers that it represents that lead me to believe that at least some marketers must hail from some alternate Bizzaro-World universe. Dela Quist is typical of this lot, who seem to think that rather than being dead weight which adds no value to a mailing list, unengaged recipients have some sort of hidden value, which is just waiting for the right trigger to cause it to emerge — and that as a marketer, it’s her right to keep pounding away at these folks until she hits the magic “buy” button, which sends those pretty greenbacks into her wallet, confirming her hunch.
    This is practically the definition of throwing good money after bad.
    Now add to the fact that ISPs are giving their users better tools to prioritize their own inboxes, which means unengaged recipients can now completely ignore mail they don’t really want to see “right now”. This throws the fact that trying to re-engaged these recipients is a lost cause into sharp relief.
    But of course none of this is in keeping with Bizzaro-World Marketing 101. The inbox BELONGS to the marketer and how dare those ISPs take it away! Empowering end-users to make their own decisions about what marketing they want to see OUGHT TO BE ILLEGAL! ME NO AM BIZZARO EMAIL MARKETER! ME NO SEND SPAM! ME NOT WANT END USERS TO NOT SEE BIZZARO EMAIL!
    See? Bizzaro world.

  2. Paul Cunningham says

    I thought the article was quite silly. Priority Inbox and spam filtering are two separate beasts.
    The bank statement analogy in the article was a poor choice. Your postal service doesn’t stop delivering statements just because you don’t open them. Nor is Gmail planning to stop delivering email just because it isn’t triggering their priority algorithms.
    All Priority Inbox is is an optional, algorithmic replacement (with manual adjustment/training) for what most of us do already – filter our mail by importance so that we can deal with the highest priority stuff first.

  3. Dela Quist says

    Hi Laura
    Like the title of your post btw – its not going to cause as much apoplexy as “Deliverability by engagement – a class action lawsuit waiting to happen?” but hey the point is to get people to read it isn’t it?
    I am honoured you that you a) read and b) commented on, my post.
    I will be responding to all the people like you who have been civilised in their disagreement as soon as I can; I am on the road this week and have very limited time so it may take a day or two. If you step back from the deliverability standpoint for a second – which is all I am asking and think like a marketer (shock horror) – my post makes a lot more sense.
    Dela
    PS We are not as far apart as you might think.

    1. laura says

      The problem with “thinking like a marketer” is that what marketers want is to control the users inbox. If marketers had the ability to force all non-marketing email out of the inbox they would. What’s happening, though, is that users are saying they don’t want marketing mail in their face. They want it elsewhere so that they can read it when *they* want to. They use email for a host of other things and marketing is a small fraction of that. Marketers don’t like that, and thus make grandiose statements about how they should sue ISPs for not treating their mail the way the marketer things it should be treated.
      It doesn’t work that way. Marketers don’t own ISPs the way they own the USPS. The only way to get ISPs to change what they’re doing is to get recipients (y’know, those customers that marketers and ISPs share) to ask the ISPs to change. The ISPs are acting as a proxy for the recipient. Recipients want more tools to manage the volume of mail that comes at them. The ISPs are responding to user requests.

  4. Al says

    “Sue your way to the inbox” is just crazy.

  5. Huey says

    Dela: your post is not just wrong, it’s wrong in a way that makes marketers look bad. The CDA is black-letter law in the US, with precedent, and anyone who follows your suggestions and starts an extremely ill-advised lawsuit is going to lose.
    Also, re: “the point is to get people to read it isn’t it?”: if that’s really the point, then why not title your post “EXCLUSIVE PHOTOS OF SARAH PALIN IN NAZI BIKER ORGY (NSFW)” ?

  6. Dela Quist says

    Huey
    LOL I could have titled it “EXCLUSIVE PHOTOS OF SARAH PALIN IN NAZI BIKER ORGY (NSFW)”, but I’d like to think people like you, Laura, Al would not have read it! And that would defeat the object of the post which was to open up a sensible debate.
    I must say I am amazed by how strongly people feel about the prevailing view.

    1. laura says

      In order to have a sensible debate, you have to have a sensible premise.
      Your premise does not strike me as very sensible.

  7. Dela Quist says

    Hi Al
    I don’t think it is that crazy to hypothesise that someone might sue, like it or not many emails that get blocked are lawfully sent by legitimate companies to people who actually requested the email. One day one of them with deep pockets (or an opportunistic lawyer)just might say enough is enough.
    Plus and to Huey’s other point, you have to remember that you don’t actually have to win a class action lawsuit in court to effect change. After all Google recently agreed to pay $8.5 million to make Buzz privacy lawsuits go away.
    http://www.engadget.com/2010/09/04/google-agrees-to-pay-8-5-million-to-make-buzz-privacy-lawsuits/
    they launched Buzz because they thought that was what their users “really wanted” but they hadn’t really thought through all the implications.
    My point is that I don’t think they have done so in this case either

  8. Steve White says

    It’s time for ISPs to be held accountable. What they are doing is ILLEGAL on many levels. The filtering has spiraled out of control. There is NO limit/regulation/control on what the ISPs do. They block a LOT of legitimate mail and they dont give a flying fluck. Their answer….”get certified” which of course brings in money for them.
    All I have to say is this – and everytime I ask this, even to Yahoo execs, I never get an answer:
    How is it Okay/Legal/permissible for an ISP like Yahoo to send SMTP error messages indicating “[your] message has been deferred due to [excessive at times] user complaints” [TS-01] when in fact their own feedback loop shows no complaints.
    Ridiculous.

    1. laura says

      You may not like it. You may want it to be illegal, but it’s not actually illegal, inside the US.
      As for “get certified” only Goodmail certification brings money into the ISPs (assuming Goodmail’s business model hasn’t changed recently) and *many* senders get into the inbox every day without having certification. I know, many of my clients do just that.
      (oh, and the proper term is voilà not ‘wallah’)

  9. Steve White says

    And one more thing,
    We all know cases have been won with less. ISPs are continuing to push the envelope on privacy and communications in an effort to control spam. First it was delivery by reputation and now the trend is shifting to delivery by engagement – they don’t know what the fluck they are doing.
    And on the subject of blacklists, I must mention Spamhaus. For the first time in 2010, they started to list IPs without ANY evidence and now this is a common practice. You heard me right, if they believe that an IP is being used or will be used to spam they can pre-emptively list an IP or IP range. Without a single e-mail/spam being transmitted.
    This foolishness goes on because it’s the internet and so what who cares. When ISPs do this to Fortune companies like a major theme park operator and the operator threatens to sue if the blocks continue, the ISP caves in and gives a carte blanche to the Fortune company. I’ve seen it happen time after time. Those who have legal resources at their disposal don’t have issues. A few phone calls, legal threats, and wallah blocks are lifted.

  10. It’s not illegal to block mail – Word to the Wise says

    […] post “We’re going to party like it’s 1996” is still getting a lot of comments from people. Based on the comments, either people […]

  11. Paul Cunningham says

    The Buzz lawsuit was about user privacy and how the default Buzz settings exposed people’s private contacts.
    Priority Inbox does not publicly expose any private user information.
    That Google screwed up Buzz doesn’t mean they got Priority Inbox wrong as well. In fact if you want to measure the two launches in terms of user outrage, look at the press and blog coverage for each. Buzz was largely slammed, Priority Inbox was largely applauded (or ignored for those who don’t want to turn it on).

  12. Al says

    I don’t think it’s crazy to hypothesize that somebody might sue for ANY reason. There are a lot of bad, useless lawsuits that get filed, especially in the US.
    It is clear to me though, that to to advocate that such a lawsuit is likely to have merit and might be successful, is crazy. Years of legal precedents and very clear prevailing law convince me so.

  13. Russell Fletcher says

    I’m not sure Dela is advocating legal action against ISPs. Rather, he is bringing up some salient points as sort of his own RFC to the email community.
    He makes an absolutely dead-on observation in his post:
    “Our community, ‘guided’ by people with a vested interest in, and/or a career built on, the idea of inbox delivery being difficult, are implying that these new developments serve us right because we’re not being relevant. ESPs, deliverability companies, and the vast majority of email agencies out there operate by this mantra: if something doesn’t reach someone’s inbox, it’s our fault. No one is questioning whether the ISPs’ latest response to the spam issue is either reasonable or legitimate.”
    When ISPs introduce new changes to filtering that are partially based on subjective engagement metrics, they should be questioned. He is simply pointing this out IMHO.

    1. laura says

      I disagree, though, with one critical bit.
      Inbox delivery *isn’t* difficult. It’s a matter of common sense and sending mail people want. That’s all you need to do. I’ve been trying to work myself out of a job for years.
      What is actually difficult is getting mail people don’t want into the inbox. The ISPs are actually pretty good at filtering, the problem is that a lot of senders want to be able to send any mail to any address and not have to actually pay attention to things like engagement or relevance or permission.

  14. Russell Fletcher says

    That is a matter of opinion. For someone with vast experience such as yourself, it’s not. However, we work with legitimate senders every day who are desperate to adhere to best practices, but they are ill-informed at best about what to do. These people are the lifeblood of the deliverability services industry.
    ISPs have a difficult job, but they have also been their own worst enemy to a certain extent. Case in point, DKIM compliance is still really only “recommended” and mail can certainly circumvent filtering if not so signed.
    Without a doubt, there are still a lot of lazy senders. This is somewhat a misnomer as many email campaign production people actually put in countless hours to get jobs out. What I mean is that they see metrics like “$45 made for every $1 spent” and want to get in on the action. They think it’ll suffice to send generic templates and still see a nice return. Hopefully, the priority inbox issue will help to bring about some true artistry and creativity from an email production standpoint and to raise the bar for the industry overall.

  15. laura says

    You quoted Dela as saying that that delivery consultants like myself have a vested interest in making email delivery look difficult in order to cultivate a business. While I can’t speak for everyone in the industry and will even admit some of my competitors probably do attempt to make it seem as difficult as possible, that statement is not universally true.
    Sure, some senders need a bit of advice sometimes, but I think Dela is totally wide of the mark claiming that delivery consultants are somehow responsible for the current situation.
    I’m not sure what your point in bringing DKIM signing into the discussion is about. DKIM is not about delivery and while there are clearly benefits to bulk senders to signing with DKIM, I can’t envision any scenario where signing with DKIM is a flat requirement to get any email delivered.

  16. The Proverbial Barry says

    okay russell if you think isps should be treating your mail more harshly on dkim and other stuff then dont whine when we start doing it

  17. Russell Fletcher says

    Laura, I certainly don’t believe delivery consultants are responsible for much of anything regarding ills within the email ecosystem. They/you are simply taking advantage of opportunities that mailbox hosts provide with faulty filtering technology/policies and lack of cogent communication to senders.
    No whining here Barry. Just don’t repeat the “Dear AOL” fiasco of a few years ago by backing down when people start to complain- and they will.

  18. Trout says

    Buh. What “Dear AOL fiasco”, exactly? Your sentence does not make sense.

  19. J.D. Falk says

    Another way to look at it, Russell, is that the deliverabilitators coach senders to become more respectful of their recipients. The first step should be (but rarely is) to stop blaming the ISPs for your own lack of experience, understanding, and compassion.

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