Following CAN SPAM isn't enough to reach the inbox

One of the top entries on the list of things deliverability folks hear all the time is, “But my mail is all CAN SPAM compliant!” The thing is… no one handling inbound mail really cares. Seriously. CAN SPAM is a law that is little more than don’t lie, don’t hide, and heed the no. Even more importantly, the law itself states that there is no obligation for ISPs to deliver CAN SPAM compliant mail.

15 U.S.C. § 7707(8)(c)
NO EFFECT ON POLICIES OF PROVIDERS OF INTERNET ACCESS SERVICE.—Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.

Many companies do list on their postmaster pages that they expect senders to comply with the law. (AOL, Yahoo, Microsoft). But just because email complies with CAN SPAM doesn’t mean it will be accepted or delivered.
Complying with the law is the bare minimum. And the way CAN SPAM is written it’s such a low bar it may as well be lying on the ground. Everyone sending unsolicited mail should be complying with CAN SPAM. But don’t expect the compliance to win you a path to the inbox. That’s just not how it works.

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Oh, Microsoft

Things have been a little unsettled at Microsoft webmail properties over the last few months. A number of ESPs reported significantly increased deferrals from Microsoft properties starting sometime late in November. Others saw reduced open rates across their customer base starting in late October. More recently, people are noticing higher complaint rates as well as an increase in mail being dropped on the floor. Additionally, Return Path announced certification changes at the end of November lowering the Microsoft overall complaint rate to 0.2%, half of what is was previously.

Overall, sending mail to Microsoft is a challenge lately. This is all correlated with visible changes which may seem unrelated to deliverability, but actually are. What are the changes we know about?

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Thinking about deliverability

I was chatting with folks over on one of the email slack channels today. The discussion was about an ESP not wanting to implement a particular change as it would hurt deliverability. It led me down a path of thinking about how we think of deliverability and how that informs how we approach email.
The biggest problem I see is the black and white thinking.
There’s an underlying belief in the deliverability, receiving, and filtering communities  that the only way to affect sending behavior is to block (or threaten to block) mail.

This was true back in the ancient times (the late 90’s). We didn’t have sophisticated tools and fast CPUs. There weren’t a lot of ways to handle bad mail other than to block. Now the landscape is different. We have many more tools and the computing capacity to quickly sort large streams of data.
At most places these days, blocking is an escalation, not a warning shot. Many places rate limit and bulk folder questionable mail as a first strike against problem mail. Sometimes the mail is bad enough to result in a block. Other times, it’s not bad enough to block, so it disappears into the bulk folder.
There’s a corresponding belief in the sending community that if their behavior doesn’t result in blocking then they’re acting acceptably. This isn’t true either. There are a lot of things you can do (or not do) that don’t help delivery, but will actively harm delivery. Likewise, there are things you can do that don’t actively harm delivery, but will help. All of these things add up to reaching the inbox.

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It's not fair

In the delivery space, stuff comes in cycles. We’re currently in a cycle where people are unhappy with spam filters. There are two reasons they’re unhappy: false positives and false negatives.
False positives are emails that the user doesn’t think is spam but goes into the bulk folder anyway.
Fales negatives are emails that the user does thing is spam but is delivered to the inbox.
I’ve sat on multiple calls over the course of my career, with clients and potential clients, where the question I cannot answer comes up. “Why do I still get spam?”
I have a lot of thoughts about this question and what it means for a discussion, how it should be answered and what the next steps are. But it’s important to understand that I, and most of my deliverability colleagues, hate this question. Yet we get it all the time. ISPs get it, too.
A big part of the answer is because spammers spend inordinate amounts of time and money trying to figure out how to break filters. In fact, back in 2006 the FTC fined a company almost a million dollars for using deceptive techniques to try and get into filters. One of the things this company did would be to have folks manually create emails to test filters. Once they found a piece of text that would get into the inbox, they’d spam until the filters caught up. Then, they’d start testing content again to see what would get past the filters. Repeat.
This wasn’t some fly by night company. They had beautiful offices in San Francisco with conference rooms overlooking Treasure Island. They were profitable. They were spammers. Of course, not long after the FTC fined them, they filed bankruptcy and disappeared.
Other spammers create and cultivate vast networks of IP addresses and domains to be used in snowshoeing operations. Still other spammers create criminal acts to hijack reputation of legitimate senders to make it to the inbox.
Why do you still get spam? That’s a bit like asking why people speed or run red lights. You still get spam because spammers invest a lot of money and time into sending you spam. They’re OK with only a small percentage of emails getting through filters, they’ll just make it up in volume.
Spam still exists because spammers still exist.
 

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