CASL enforcement

As most people know, the Canadian Anti-Spam Law (CASL) went into effect July 1 of this year. This month, the CRTC concluded its first investigation.

A computer reseller based in Saskatchewan was placed under investigation by the CRTC after large numbers of complaints were made through the Spam Reporting Centre. The CRTC revealed that a server owned by the computer reseller sent millions of e-mail spam messages through Saskatchewan-based internet service provider, Access Communications. […] Exercising its discretion, the CRTC chose not to fine the business. CRCT Concludes First Enforcement

One of the biggest complaints about CASL was that innocent senders who just happened to inadvertently violate CASL would be hit with business ending fines. But the agencies tasked with enforcement have discretion. There are no minimum fines that they have to impose, they have discretion. Their first enforcement action demonstrates this. It would be easy for the CRTC to impose business ending fines on their initial case, as a warning to other senders. They didn’t do that.
CRTC has demonstrated they’re willing to work with businesses that violate CASL. That gives all senders a little bit of breathing room for the next 2.5 years. Come July 1, 2017, individual users can exercise their private rights of action against senders. The PRoA is really an unknown variable. How many Canadians are annoyed enough by unsolicited emails that they’re willing to take senders to court? I don’t really know.

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Email saves trees!

The arrival of my first spam email was a bit of a shock. I’d been on the internet for years by that point and had never seen junk mail in my inbox. Of course, the Internet was a very different place. The web was still a toddler. There was no email marketing industry. In fact, there wasn’t much commerce on the web at all. Much of the “surfing” I did was using gopher and ftp rather than the fancy new web browser called NCSA Mosaic. To share pictures we actually had to send printouts by postal mail.
It wasn’t just getting spam that was memorable (oh, great! now my inbox is going to look like my postal box, stuffed full of things I don’t want), it was the domain name: savetrees.com. Built into the domain name was an entire argument defending spam on the grounds of environmental friendliness. By sending spam instead of postal mail we could save the earth. Anyone who didn’t like it was morally corrupt and must hate the planet.
Why do I mention this history? During a discussion on a list for marketers earlier this week, multiple people mentioned that email marketing was clearly and obviously the much more environmentally sound way to do things. I mentioned this over on Facebook and one of my librarian friends (who was one of the people I was email friends with back in those early days) started doing her thing.
She posted her findings over on the Environmental News Bits blog: The comparative environmental impact of email and paper mail. It’s well worth a read, if only because a lot of companies have really looked into the issue in great detail. Much greater detail than I thought was being put into the issue.
I shared one of the links she found, the 2009 McAfee study, with the email marketing group discussing the issue. (You may want to put down the drinks before reading the next line.) It was universally panned as marketing and therefore the conclusions couldn’t be trusted.
Anyone who pays any attention knows that nothing we do and none of the choices we make are environmentally neutral. Plastic bags were supposed to save trees from becoming paper bags, but turned into an environmental mess of their own.
Simple slogans like “email saves trees” might make marketers feel better, and may have gained Cyberpromo a strong customer base in the early days. But the reality is different.

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Yes, spam is actually still a problem

I hear a lot of people claim that spam isn’t really a problem any more. That filters are so good that the average user doesn’t see a lot of spam and if they do get “legitimate” mail that they can just opt out.
These are great sounding arguments, the problem is that those arguments aren’t always true.
There is an address I stopped using for commercial mail around 1997 and all mail around 2002. It still gets hundreds of emails a month.
Those hundreds of emails a month are despite the fact that the address is behind commercial spam filters. It’s been on “flamers lists.” It’s on the “do not mail” list that came with the “Millions CD.”
In addition, I am very open with clients (and their affiliates) that this is a “spam trap” address. I’ve handed it out to dozens and dozens of companies over the years describing it as my spam trap address.
In November 2013, I unsubscribed from every single email received at that account – at least those that had unsubscribe links.
What does the mail volume look like now?
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If anything unsubscribing made the volume problems worse. In the best case it lowered the volume briefly to something approaching 10 emails a day.
There are currently over 500 messages I’ve received so far in August. These are messages advertising companies like Laura Ashley, MetLife, Military.com, Quibids, Walk In Tubs, Sainsbury’s, Bloomburg, Fidelity, Oral B, Lasix Vision Institute, Virgin Broadband, ClickNLoan, Timeshares, iMotors, Walmart, oil changes, Experian, Credit monitoring, Life insurance, ADT, CHW Home Warranty, Health Plans of America, Bosley Hair Solutions, Jillian Michaels Online, restaurant coupons, credit cards, SBA loans, and that’s before we get to the Garcinia cambogia, herbal viagra and clearly fraudulent stuff.
This account, that hasn’t been subscribed to anything in more than 10 years is getting hundreds of unasked for emails a month, even with the benefit of commercial filters. It appears to be being sold or traded in multiple countries (Laura Ashley, Virgin Broadband and Sainsbury’s are all in the UK). I don’t want this mail. I have tried to stop getting this mail.
Yes, spam is still a problem.

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Who pays for spam?

A couple weeks ago, I published a blog post about monetizing the complaint stream. The premise was that ESPs could offer lower base rates for sending if the customer agreed to pay per complaint. The idea came to me while talking with a deliverability expert at a major ESP. One of their potential customer wanted the ESP to allow them to mail purchased lists. The customer even offered to indemnify the ESP and assume all legal risk for mailing purchased lists.
While on the surface this may seem like a generous offer, there aren’t many legal liabilities associated with sending email. Follow a few basic rules that most of us learn in Kindergarten (say your name, stop poking when asked, don’t lie) and there’s no chance you’ll be legally liable for your actions.
Legal liability is not really the concern for most ESPs. The bigger issues for ESPs including overall sending reputation and cost associated with resolving a block. The idea behind monetizing the complaint stream was making the customer bear some of the risk for bad sends. ESP customers do a lot of bad things, up to and including spamming, without having any financial consequences for the behavior. By sharing  in the non-legal consequences of spamming, the customer may feel some of the effect of their bad decisions.
Right now, ESPs really protect customers from consequences. The ESP pays for the compliance team. The ESP handles negotiations with ISPs and filtering companies. The cost of this is partially built into the sending pricing, but if there is a big problem, the ESP ends up shouldering the bulk of the resolution costs. In some cases, the ESP even loses revenue as they disconnect the sender.
ESPs hide the cost of bad decisions from customers and do not incentivize customers to make good decisions. Maybe if they started making customers shoulder some of the financial liability for spamming there’d be less spamming.

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