No SPAM

The CAN-SPAM Act of 2003, signed by President George W. Bush, requires certain elements to be included in unsolicited email correspondence to make it legal and to protect the sender from lawsuits, but how do you feel ethically about sending to a purchased list?

In my past life, working for a large, privately-held, ESP (Email Service Provider) here in Dallas, TX — I learned quite a bit about the legality and ethics associated with email marketing. I would often receive questions from prospective customers regarding the legal aspect of sending “unsolicited” email campaigns — or as we more commonly refer to it — SPAM.

SPAM email is one of those things that businesses don’t want to be associated with, but they always seem to creep closer and closer towards (especially in tight economic climates, or when their name acquisition efforts are not working as quickly as they would like).

So, in today’s blog, we’re going to review the legal aspects of sending campaign messages via email to purchased email lists.

This debate is really an ethical vs. legal one. As someone that previously purchased marketing lists and distributed email campaigns to them, I can tell you this — everyone that is on the list thinks that they can sue you for sending them your email.

I’m here to tell you that they can’t, so long as you cover your bases. So, let’s look at the legal aspects of the CAN-SPAM Act of 2003.

Definition:

SPAM is the use of electronic messaging systems (including most broadcast media, digital delivery systems) to send unsolicited bulk messages indiscriminately.

Summary of CAN-SPAM Act of 2003:

  • Signed into law by President George W. Bush on 12/16/2003
  • Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003
  • SPAM is enforced by the Federal Trade Commission (FTC)
  • Commonly referred to as “You Can SPAM Act”, as it legalizes most email spam, in particular it doesn’t require permission prior to marketing
  • Prohibits states from enacting stronger laws against unsolicited mail

If you do not want to be sued or shut down by the FTC, here is what you need to include in your message(s):

Legal Requirements:

  • Sender must provide physical mailing address in unsolicited messages
  • Provide recipient with a valid opt-out request
  • A recipient cannot be required to pay a fee to opt-out
  • A recipient can do as little as replying to the sender requesting opt-out
  • Opt-out requests must be honored within 10 days of receipt
  • A few other elements that are too geeky to worry about here (false headers, open relays, etc.)

So, in summary — so long as you include those items, you’re good to start carpet-bombing every email address you can buy, right?

Wrong.

This is where the ethical aspect of the debate comes into play.

You see, major spam monitoring services (services like Barracuda, SPAM Assassin, etc.) are not legally bound to deliver your email to their recipients (even if you include all of the legal requirements). They can (and do) run every email through a rigorous series of tests in an attempt to weed out even potentially SPAM email messages.

Here’s a chart from the Barracuda website that indicates all of the measures a single email message will go through to reach one of their recipients:

Barracuda Spam Architecture

Once you get on a spam blacklist, it can be a rigorous and time-consuming process to overcome. In fact, most ESP’s will not allow their clients to upload purchased email lists for the simple fact that it creates a massive headache for them to “clear their names” again with those said blacklist management companies.

From an ethical standpoint, I would (and will always) advise against buying email lists for sure fire marketing initiatives. That said, there are always exceptions (and I suppose you can persuade me that it is acceptable for certain scenarios and with certain businesses), but not for non-profits and their fund raising efforts.

It’s worth mentioning that there is a very clear difference between “rented lists” and “purchased lists”. The rented list is one that is provided to you by a reputable firm, that has double-opted in their audience and asked them if they would be willing to “receive advertisements from their affiliates” (you’ve seen these lists, right?). These names are rented for a certain period of time (or number of sends) by the marketing organization (and are never truly in control of the marketer).

A purchased list is either manually or automatically scraped (via a program/script) over the internet to collect email addresses (usually on “contact us” forms, or directories, etc). More often than not, a purchased list seller will relinquish control of email addresses/names to the marketing organization to own and market to an unlimited number of times.

It seems like a hard mountain to climb, but the journey of a thousand miles starts but with one small step — so, I would always advise that the funds you would spend on purchasing a list are better spent on advertising and growing your email house file organically.

With proper targeting and A/B testing, you can actually get to a point where your cost-per-acquisition (CPA) is not that much (a few dollars) for a name/email address.

We actually have one client here at KMA that makes at least $5.00 every time someone gives them their name/email address (because they subsequently turn into donors so quickly thereafter).

In conclusion:

An organically grown list will always outperform (some of our tests show between double to triple the results) of a purchased list and will not jeopardize your overall email marketing efforts (or leave you offline for a period of time due to grappling with SPAM monitoring services that have blacklisted you as a SPAMMER).

The moral of the story goes back to an Aesop Fable about the Tortoise and the Hare — slow but steady wins the race.

– GC

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