Ask Laura: Is it spam?

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

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