Permission is not a legal concept

One trap I see companies fall into when looking at opt-in and permission is they seem to think that permission is a blanket thing. They believe permission can be bought and sold by the companies that collected email addresses.

Legally, they may be correct. But in practice senders cannot decide that they can sell the permission of their recipients to another entity. As Al said today, you cannot buy an existing business relationship. When commenting on that post over on twitter, Evan Burke had a series of very insightful tweets on the issue.

Evan is exactly right.

Coincidentally, I had a potential client call me this morning to discuss the delivery problems they were having with a list. At the end of the call he also mentioned that they had a list of 7 million addresses that had been sitting around and they wanted to incorporate it into their list. I was open minded about the chances to recover the list, until he dropped that the list was 10 years old. I have to admit, I probably was not the cheery, positive, put a friendly face for the potential client consultant in responding to that.

But, really, there’s no way someone who opted in 10 years ago is going to remember they opted in to receive mail from whatever list has been found.

One thing that senders, list sellers and lawyers have to remember is that recipients are the final arbiters of permission. They know what they agreed to and if they don’t think this list, or this brand, or this sender has permission they will respond with spam complaints. The result is decreasing reputation for the sender followed by increasing delivery problems. Just because the sender thinks they have permission doesn’t mean the recipients agree with them.

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Fake privacy policies

I sign up at a lot of websites and liberally spray email addresses across the net. These signups are on behalf of one customer or another and each webform gets its own tagged and tracked email address. I always have a specific goal with each signup: getting a copy of a customer’s email, checking their signup process, auditing an affiliate on behalf of a customer or identifying where there might be a problem in a process. Because I have specific goals, I am pretty careful with these signups and usually uncheck every “share my email address” box I can find on the forms.
In every case the privacy policies of my clients and the things they tell me are explicit in that addresses will not be shared. It’s all opt-in, and email addresses are not shared without permission. Even in the cases where I am auditing affiliates, my clients assure me that if I follow this exact process my address will not be shared. Or so the affiliates have assured them.
Despite my care and the privacy policies on the websites, these addresses occasionally leak or are sold. This is actually very rare, and most of the websites I test never do anything with my address that I don’t expect. But in a couple cases these email addresses have ended up in the hands of some hard core spammers (hundreds of emails a day) and there was no useful tracking I could do. In other cases the volume has been lower, and I’ve watched the progression of my email addresses being bought and sold with morbid fascination.
Today an address I signed up at a website about a year ago got hit with multiple spams in a short time frame. All came from different IPs in the same /24. All had different domains with no websites. Whois showed all the domains were registered behind a privacy protection service. Interestingly, two of the domains used the same CAN SPAM address. The third had no CAN SPAM address at all. None of these addresses match the data I have on file related to the email signup.
It never ceases to amaze me how dishonest some address collection outfits. Their websites state clearly that addresses will not be bought an sold, and yet the addresses get lots of spam unrelated to the original signup. For those dishonest enough to do this they’ll never get caught unless recipients tags and tracks all their signups. Even worse, unless their partners test their signups or their mailing practices, the partners may end up unwittingly sending spam.

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Buying lists and other stupid marketing tricks

Back in November, I commented on Zoominfo and that they were selling senders very bad lists. At that time, Zoominfo did not have my current information. They have since rectified that problem and are now selling my information to people.
This morning, I received an email that said:

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TWSD: Run, hide and obfuscate

Spammers and spamming companies have elevated obfuscating their corporate identities to an artform. Some of the more dedicated, but just this side of legal, spammers set up 3 or 4 different front companies: one to sell advertising, one or more to actually send mail, one to get connectivity and one as a backup for when the first three fail. Because they use rotating domain names and IP addresses all hidden behind fake names or “privacy protection services”, the actual spammer can be impossible to track without court documents.
One example of this is Ken Magill’s ongoing series of reports about EmailAppenders.
Aug 5, 2008 Ouch: A List-Purchase Nighmare
Sept 9, 2008 Umm… About EmailAppenders’ NYC Office
Sept 15, 2008 E-mail Appending Plot Thickens
Nov 11, 2008 EmailAppenders Hawking Bogus List, Claims Publisher
Dec 23, 2008 Internet Retailer Sues EmailAppenders
Feb 1, 2009 EmailAppenders Update
Mar 10, 2009 Another Bogus E-mail List Claimed
April 14, 2009 EmailAppenders a Court No-Show, Says Internet Retailer
April 21, 2009 EmailAppenders Gone? New Firm Surfaces
May 5, 2009 EmailAppenders Back with New Web Site, New Name
Their actions, chronicled in his posts, are exactly what I see list providers, list brokers and “affiliate marketers” do every day. They hide, they lie, they cheat and they obfuscate. When someone finally decides to sue, they dissolve one company and start another. Every new article demonstrates what spammers do in order to stay one step ahead of their victims.
While Ken has chronicled one example of this, there are dozens of similar scammers. Many of them don’t have a persistent reporter documenting all the company changes, so normal due diligence searches fail to turn up any of the truth. Companies looking for affiliates or list sources often fall victim to scammers and spammers, and suffer delivery and reputation problems as a result.
Companies that insist on using list sellers, lead generation companies and affilates must protect themselves from these sorts of scammers. Due diligence can be a challenge, because of the many names, domains and businesses these companies hide behind. Those tasked with investigating affiliates, address sources or or mailing partners can use some of the same investigative techniques Ken did to identify potential problems.

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