Last week NAID sent out the inagural edition of a semi-monthly newsletter to its email list. I got two copies to two seperate addresses of the initial email, so four in all. I suspect that the NAID mail server or staffer made an error somewhere along the way. But in observing the email I became concerned. I am not opposed to NAID sending me emails. I did converse with Bob Johnson, Executive Director of NAID at length about this situation, and some of those things are discussed below. So I write this to make some points that we all need to be aware of if we start email newsletter programs. Here are a some of my concerns with the program, and what we can learn from it.
Compliance
I have never subscribed or had the option to subscribe or opt in to this or any NAID newsletter. I am not officially a member of NAID, thus have no formal relationship with them. Thus, this e-newsletter, in my opinion borders on spam. Under the CAN SPAM Act which came into effect in 2004 the intent of the Act is to regulate interstate commerce by imposing limitations and penalties on the transmission of unsolicited commercial electronic mail via the Internet. Section 3:1 of the Act states the following…
AFFIRMATIVE CONSENT- The term `affirmative consent’, when used with respect to a commercial electronic mail message, means that–
(A)the recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative; and
(B) if the message is from a party other than the party to which the recipient communicated such consent, the recipient was given clear and conspicuous notice at the time the consent was communicated that the recipient’s electronic mail address could be transferred to such other party for the purpose of initiating commercial electronic mail messages.
Neither of these then apply to the email newsletter I received from them. Bob Johnson confirmed that they sought legal opinion on this matter and were advised that they were not breaking the rule as they were providing informational content, not commercial advertising. On that point I too have some concerns. The email newsletter contained advertising for NAID vendors. So what officially constitutes commercial or informational now becomes fuzzy, as NAID is being paid to have others advertising on their e-newsletter. At this point, I assume it is commercial. Sec3:2:A of the Act suggests that
IN GENERAL- The term `commercial electronic mail message’ means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service
So you decide… I disagree with the legal opinion. I think it is commercial, thus believe they should comply with CAN-SPAM regulations. Strangely, these regulations are relatively easy.. The Act requires unsolicited commercial e-mail messages include opt-out instructions, the sender’s physical address, as well as indication of the source from which the email was obtained, if obtained by a third party.
Now, this is where it gets somewhat tricky. Opt-outs to an organization mean that all email to that person from the sending organization must be suppressed. Therefore, my suggestion to Bob was a subscription management page where one could remove their subscription to a specific newsletter, such as NAIDdirect, without compromising the ability to send for other necessary emails.
Adding the physical address to the newsletter is a simple exercise. Adding the source of my email address could be awkward. As a member of PRISM, I am aware that lists get transferred, especially since they hold joint conferences. But, I would like to know that as a customer.
Blacklisting
The largest ISP’s in the country have very clear definitions of what constitutes acceptable use of their servers to transmit email to their subscribers. AOL is often the most aggressive in ensuring compliance. Failure to comply means blacklisting, which inevitable means all email coming from a email sender will be re-routed to a spam blackhole without ever reaching it’s intended recipients. There are many small things the AOL email system looks for that represent spam to them. One example is the use of multiple names in a BCC field. It prefers an email addressed to a specific person in the “To” section of the email. The link to AOL above is a best practice recommendation and includes those listed above. Failure to do so can potentially lead to blacklisting. While AOL is often seen as the strongest of enforcers, due to the overwhelming number of spam ISP’s recive, they have all instituted process to remove them. My concern for NAID is that none of the critical “best Practices” have been followed.
Receivers Spam Software
To add to the complexity, one simple click on my part in my spam software begins a series of events that jeopordizes the future reception of any email from NAID to a significant group of their members. By designating the email as spam, I or anyone else could begin the blacklisting process. The other most significant way ISP’s determine spam is user response, and shared blacklists. My spam detection software is a user defined blacklisting service, such that I determine with a click of a button what is spam (in my opinion) that then get transmitted back to the software provider and now is used by ISP’s to assist their own categorization of spam. Email administrators at ISPs and corporate IT departments who visit the list frequently, may then block your incoming mail to all their users. Vicious cycle, but one that email senders must acknowledge. In the case of the NAID newsletter, a simple subscription management page link gives me the option of unsubscribing quickly. Without it, I am faced with the other option of pushing the SPAM button.
So, all this to say, despite legal opinion, sending a newsletter is now a complicated matter. Some advice.
1. If you decide to do an email program, think about how you will do it, what process you will use. Don’t just consider a legal opinion like NAID did, consider the other issues.
2. To remove yourselves from the blacklist will be significantly harder than ensuring a compliant optin subscription process in the first place. Smart process up front will help to build a good rates of read by your customers.
3. A lot of webmasters are not the best resource here. The reason being is that they benefit from you sending email through them, especially if they are charging you for them. You need to ask them to give you proof of reception by those you sent it to, without having to “request a read” receipt. In many cases this is best accomplished by using a suitable email only vendor who understand whitelisting.
4. I can help you. Give me a call.