Ask Laura: Is it spam?

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Dear Laura,

I’ve been having a discussion with a colleague who is particularly frustrated by unwanted email he gets from retailers. Specifically, these are retailers who he’s never given an email address, but whose sites he’s browsed recently. He understands how retargeting works with web ads, but questions if it’s really acceptable to retarget in the email channel or if that violates CAN-SPAM or other anti-spam legislation.

I think it’s an interesting discussion, but I’m pretty sure that my colleague is wrong. These companies can retarget because people opt-in to “partner” emails all the time, and “partners” often equals “retargeters”. It’s not spam, and it’s not in violation of CAN-SPAM. 

So what do you think? Spam or not-spam?

Yours in contradictions,

Schrödinger’s Box-of-Spam

Dear Schrödy,
I understand this paradox of which you speak. Let me explain the process a bit for those who don’t.

Through email a retargeter sets a cookie on a machine, linking the web browser to the email address that received the cookie. As people use that web browser to surf, they can land on sites that belong to the retargeter’s customers. This triggers a process that can result in the address owner receiving mail. This mail is often unexpected and sometimes unwanted from the website that’s been browsed.

This may seem like a violation of CAN-SPAM, but that law doesn’t define spam as unexpected or unwanted email. CAN-SPAM says you can send mail to anyone until they tell you to stop. That mail has to meet certain criteria (opt-out, no falsified headers, clearly marked as advertising), but there is nothing in CAN-SPAM that prohibits buying and selling of lists or email addresses or even sending mails to people who simply visit your website.

ISP standards are different than legal standards and there is extensive case law stating that ISPs can block whatever mail they deem problematic. This case law predates CAN-SPAM and was not overruled by CAN-SPAM.

Sending mail to lists that you purchased, rather than directly collected opt-ins, is generally frowned upon by most of the folks handling filters, both at the ISP level and the commercial filter levels. From the ISP perspective, what the recipient wants is the gold standard. ISPs, particularly the free webmail providers, make money the longer the user stays in the inbox. They want the user to like visiting the inbox, so they filter mail they believe (through analysis of the user and analysis of the overall mail coming into the ISP) is unwanted.

It is certainly legal to use retargeting sites, partner sites or co-registration sites to collect permission to send mail to people. Some of them even are up front about the permission. But the reality is that many of the “partner” and “co-reg” and “database” sites are cesspools of permission. It might be permission on the outside, in that the person willingly gave their email address to the website. But it’s not real permission because they didn’t know what they were consenting to.

A few months ago I was investigating an address source for a client and spent nearly an hour reading the various terms and conditions pages and privacy policy pages. I was trying to determine if the address source was allowed to sell addresses to my client. I never could quite interpret the legalese enough to figure it out. What was clear was that your average petition signer would not realize they were agreeing to have their address sold.

So is it spam? Yes and no. Is it a best practice for customer acquisition and retention? Absolutely not. Will it ultimately impact deliverability for the brand? I think so, and I advise my clients not to do it.

Hope this helps,
Laura

Confused about delivery in general? Trying to keep up on changing policies and terminology? Need some Email 101 basics? This is the place to ask. We can’t answer specific questions about your server configuration or look at your message structure for the column (please get in touch if you’d like our help with more technical or forensic investigations!), but we’d love to answer your questions about how email works, trends in the industry, or the joys and challenges of cohabiting with felines.

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What not to do when buying lists

Saturday morning I check my mail and notice multiple emails from the DMA. Yes, I got three copies of an email from the US Direct Marketing Association with the subject line Kick It Up A Notch With The DMA Career Center. It seems the DMA are buying addresses from various companies. Because I use tagged email addresses, this means their naive de-duping doesn’t realize that laura-x and laura-y are the same email address. Of course, they’ve also managed to send to an untagged email address, too. I have no idea where they got that particular address; I’m sure I’ve never handed that address over to the DMA for any reason.
Saturday afternoon, I check one of the professional filtering / anti-spam mailing list.  Some subscribers are asking for copies of spam from 97.107.23.191 to .194. They’d seen a lot of mail to non-existent email addresses from that range and were looking to see what was going on and who was sending such bad mail. Multiple people on the list popped up with examples of the DMA mail.
Sunday morning, I checked the discussions wherein I discovered the DMA was added to the SBL (SBL 202218, SBL 202217, SBL 202216). It seems not only did they hit over a hundred Spamhaus spamtraps, they spammed Steve Linford himself.

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Dr. Livingston, I presume?

I linked to Al’s post about misdirected emails and how annoying it is for people who receive emails. I’ve previously talked about the problems associated with not handling misdirected emails properly.
It’s really annoying getting email that you never signed up for. For instance, one of my email addresses gets quite a bit of misdirected email. Oddly enough, much of this mail comes addressed to “Mrs. Christine Stelfox” and advertises various services. The problem is, I’m not Mrs. Christine Stelfox and I don’t live in the UK.
I’ve been getting this misdirected email for a while. In fact, I’ve even tried to track down the source of this just to make it stop. But I can’t seem to get that to happen. The senders tell me simply that I opted in, and that if I want to opt-out, here’s a link. Sometimes I have more luck contacting ESPs, but not always.
In fact, recently I reported spam to Mrs. Stelfox to a European based ESP. I got a response from their delivery head, who asked a lot of questions about the email address. What kind of spamtrap was it? How long had I had it? Is it possible it’s a recycled address? It’s really not, though. It’s an address I’ve had since early 1994, and it’s not really a trap as I still actually use if for some me. But I’ve not used it for commercial email since sometime in the late ’90s. And I’ve certainly never claimed to be a Mrs. Stelfox.
This really isn’t a case where I forgot I signed up. This isn’t a case where someone had the address before me. This is either some confused person using my address or some company in the UK selling my email address as belonging to someone else. I’ve tried to track this down in the past to get off the list of whomever is selling this address. But I’ve never had any luck.
There isn’t a lot of recourse here. I can continue to unsubscribe the addresses, but that doesn’t resolve the underlying problem. The underlying problem is that many marketers think it’s acceptable to purchase (or append) email addresses with no regard for the fact that sometimes their data suppliers are wrong.
It’s not just this one address, either. Another one of my email addresses is being sold as “Mrs. Laura Corbishley” of the UK as well. Sometimes I get the same spam to Mrs. Christine Stelfox and Mrs. Laura Corbishley. Other times I get different spams to each address, possibly because Mrs. Stelfox is behind some commercial email filters and Mrs. Corbishley isn’t.
Misdirected emails are annoying. They’re a problem for the people who keep getting them and can’t make them stop. It’s really important that ESPs, companies that send email and companies that sell email addresses have some way to make that mail stop. It doesn’t matter that half a dozen ESPs have put Mrs. Stelfox in their suppression list. Senders are still purchasing that data and are wasting their money. I am still getting spam.
 
 
 

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