“Another anti-spam litigant took one on the chin today. The California Supreme Court ruled in Kleffman v. Vonage Holdings Corp., No. S169195 (Cal. June 21, 2010), that an e-mail marketer’s act of sending commercial e-mail messages from multiple, random and nonsensically named domain names is not unlawful under California’s anti-spam statute, Cal. Business and Professions Code 17929.5. Even if the sender’s purpose is to evade spam filters.” Read Thomas O’Toole’s Tech Law Summary  for his opinions and some interesting comments on the decision.

Tech-Law’s summary is pretty generous to Kleffman as a plaintiff, who by reading the Judge’s decision was shut down over seemingly every argument presented. A major provider of VOIP services was sued in California over claims that a “marketing agent” from Nevada sent email offers, clearly depicting the advertiser and mentioning the publisher in the from line as greatcallrates.com@ and greatcallrates@ and various other similar versions. This was also the url of the landing page for the offer and was relevant to the content of the message.

Kleffman’s main complaint was that the domain after the @ in the initiator’s From email address was “garbled” among other descriptive terms for example: @countryfolkgospel.com or @lowdirectsme.com. The claimed intent of doing this was to evade spam filters, because filters could not block vonage.com for example if it was not used in the offers in question. Which I can’t see any ISP doing this, because what about all of vonage’s customers and prospects using an ISP who are not “anti-spam litigants”? The Judge gave an undisputed “No” to the question is it illegal in California to send from multiple domain names to evade spam filters. Which I couldn’t see to be the intent of this practice anyway. It does seem like it would have saved a lot of trouble to use domains that were relevant and more transparent, because they were clearly traceable directly and through all of the information in the messages. Another bad “anti-spam” case <sigh>.

Lashback is excited to announce we will be attending  the Internet Retailer Conference and Exhibition June 8th-10th at McCormick Place West in Chicago,IL, and exhibiting in booth 200 at Digital Marketing Days June 14th-17th at the Hilton in New York, NY. President and CEO Brandon Phillips along with Cari Birkner, Director of Client Services, and Tim Kastner, Director of Sales, will be attending these events. During the events we will be available for meetings and if interested please contact Cari Birkner at 618-719-7165 or cbirkner@lashback.com , or Tim Kastner at tim@lashback.com. We will see you there!

A discussion draft of a controversial bill to regulate behavioral targeting has been released by US Rep. Rick Boucher (D-VA). In summary, the bill addresses when and how marketers are allowed to place targeted ads based on user shopping habits and browser behavior. The bill would require advertisers to provide disclosure on how information is collected and with whom it is shared, give consumers the right to opt-out of behavioral targeting, and require consumer opt-in for marketers to collect “sensitive” information such as medical, financial, race, religious beliefs, sexual orientation and precise geo-location info.

This bill could significantly affect the ability of marketers to acquire customer acquisition lists because it would require opt-in consent for sharing most data with third parties. However, the bill does not regulate the disclosure of aggregate information, does not distinguish between PII and non-PII data, does not allow private right of action, and does not affect the current CAN-SPAM legislation. Boucher’s office is accepting comments on the bill until June 4, 2010 and many industry associations including the DMA are already speaking out against it. View articles from MediaPost and AdvertisingAge. As an ESPC member, LashBack was provided with a clear, comprehensive summary of the Boucher Bill draft. I have included the key points below and  urge marketers to look into ESPC membership to gain access to future industry resources.

Data covered by the legislation includes:

• First name or initial and last name
• Postal address
• Telephone or fax number
• Email Address
• Unique biometric data
• SSN Tax ID or any government-issued ID number
• Financial account numbers
• Any unique persistent identifier such as a customer ID, anonymous profile, IP address or cookie ID that’s used to collect and store information about a specific individual
• Preference profiles

The bill also addresses privacy policy requirements. The following list, provided in a summary to members by the ESPC, contains only the items not typically included in privacy policies today:

• How an entity stores information covered in the bill
• The length of time covered information is stored in identifiable form
• How the entity disposes of or renders data anonymous after the expiration of the retention period
• The choice and means the entity offers individuals to limit or prohibit the collection and disclosure of covered information
• The means by and the extent to which the individual may obtain access to covered info that has been collected by the entity
• A hyperlink to or a listing of the FTC’s online consumer complaint form or the toll-free phone number for the FTC’s Consumer Response Center

In the draft, several things would require consumer opt-in, including privacy policy changes, disclosing information to third parties, collection of the sensitive info covered earlier including geo-location info, and the collection of most individual behavioral targeting data.  The bill also states that it would require opt-in for disclosing preference profiles, but it contains an exception.  Individually managed preference profiles could be shared with third parties without opt-in if the marketer offers an opt-out, deletes or makes data anonymous after 18 months, includes a seal on ads that leads to information on how the ad was delivered and offers a way for the consumer to manage their preferences or opt-out of having a profile created altogether.

One interesting Boucher Bill provision is that ad networks would be given express consent to share preference profile information with third parties. This provision parallels legislation requiring advertisers and ad networks to share suppression file information with third parties.  CAN-SPAM, which is centered around consumer opt-out, could explain the purpose behind sharing preference profiles with other marketers. If all third party marketers have access to a consumer’s preference profile, they are then able to adhere to it and avoid abusing consumer info with offers running through a network.  Many email marketers are well aware of the dangers of sharing opt-out data with third parties. One should question whether sharing preference profile information would leave it open for potential abuse or serve to protect consumers if it is encrypted or properly protected. Contact the ESPC for more information on this important legislation.

Email marketing is the most profitable channel in online advertising with a 2009 Return On Investment of $43.52 per dollar spent as reported by Direct Marketing Association. However, many advertisers under-utilize the email channel because of perceived compliance and brand protection challenges. LashBack TRUSTED Ad Networks make it possible for advertisers to know which networks can increase brand reach and profits by safely leveraging a more transparent email channel. Market Leverage, LashBack client and TRUSTED Ad Network since 2005, actively enforces CAN-SPAM Act requirements and monitors publishers to hold all parties accountable for providing consumers with the best email experience possible.

St. Louis, MO (PRWEB) May 14, 2010 — LashBack, LLC, the world’s first provider of email marketing compliance data, launches Trusted Ad Networks, to recognize marketers utilizing patent-approved email compliance technology to self regulate compliance, protect brand reputation and safeguard the consumer email experience. MarketLeverage, one of the largest online “cost-per-acquisition” networks, is among the first to be listed as a LashBack TRUSTED Ad Network for its early adoption of compliance technology to protect the sustainability of the email channel. Since 2005, MarketLeverage has implemented LashBack compliance tools to enforce CAN-SPAM guidelines and improve the quality of its publisher base, building a successful online ad network that continues to safely leverage email along with multiple marketing channels.

“The compliance program at Market Leverage is crucial to protecting consumers, improving traffic quality, and sustaining long-term success. Advertisers count on Market Leverage to protect brand reputation and maintain not only compliance with federal regulations, but also with their own internal expectations,” said Michael Jenkins, CEO of MarketLeverage. “By utilizing LashBack compliance technologies, we are able to monitor publishers in real-time, provide transparency in the email marketing channel, and see the data that allows us to actively enforce our policies.”

“Proactive compliance monitoring combined with secure suppression list management solutions, routine seeding procedures, and the use of MD5 encryption are essential to preserving brand reputation in email,” said Brandon Phillips, CEO of LashBack. “Many ad networks set email compliance expectations for their affiliates, but only LashBack TRUSTED Ad Networks have the actionable data and infrastructure to enforce compliance and provide true transparency, delivering consistent results to advertisers in a sustainable way.”

As advertisers continue to look for ways to extend brand distribution, acquire new customers and find sustainable sources of revenue, ad networks that utilize the email channel safely will continue to provide results. The full list of TRUSTED Ad Networks, as well as a comprehensive collection of email compliance resources, is available on the LashBack website.

LashBack, LLC is the first and only CAN-SPAM and global email marketing compliance service, processing approximately 10,000,000 commercial emails daily. LashBack provides actionable compliance information to a diversity of email marketing clients and unsubscribe reputation data and services to leading email reputation providers, ISPs and Receivers directly and through the LashBack Unsubscribe Black List (UBL).

MarketLeverage is one of the web’s largest “Cost Per Acquisition” (CPA) networks. Market Leverage enables web Advertisers and web Publishers to harness the power of performance marketing. Since its inception as PrecisionPlay Media in 2001, MarketLeverage has delivered millions of profitable sales and leads to Advertisers through its unique network of web Publishers.

Media Contact: James O’Brien, LashBack Director of Marketing, 314-754-1795.

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A new article in Email Responsibility discusses the debated topic of unsubscribe confirmation emails. Recently, the writer of the article unsubscribed from an Omaha Steaks email and received a “we have removed your email address” confirmation email message.  It was the authors first time ever receiving an email of this kind, and he wondered “Is this email CAN-SPAM compliant?”.

As the author found out through Experian CheetahMail compliance that confirmation emails are, in fact, CAN-SPAM compliant. The reason they are compliant is that the CAN-SPAM act explicitly exempts these messages that are “notification of a change in the recipients standing or status with respect to a subscription”.

Even though the email was CAN-SPAM compliant, how well was it received? Because the email was sent immediately after the unsubscribe request, the writer did not think he was being taken advantage of.  The email was very clear and concise with an unambiguous purpose. The beginning of the email stated  “We really hate to see you go! You see we just learned that you no longer want to hear about our special offers through email. We will of course honor your request. The process to stop preprogrammed email offers may take one to two days”.  The message also included a clear subject line “We removed your email address…”.  Overall, this unsubscribe confirmation was well created.

The topic of sending unsubscribe emails is a controversial topic.  If a recipient unsubscribed on purpose, chances are they do not want to receive ANY emails from you again, even if it is an unsubscribe notification.  However, if you are going to send an unsubscribe confirmation email, there are a few guidelines to follow, provided by Anything Goes Marketing and B2B Email Marketing. First, make sure the email has is short and clear, with a direct message and a clear-cut subject line. This might even mean using a plain-text email that is light and has minimal graphics. You would not want the message to appear as another advertisement or newsletter email.  A good idea for the confirmation email is to include a brief survey, which will shine some light on why the recipient unsubscribed. Besides that, in case the user unsubscribed accidentally, a re-subscribe link should be contained within  the email. The email should also have contact information in case the recipient needs to contact the sender in the future.

Messaging watchdog group MAWWG recently conducted a global wide consumer survey regarding unsolicited emails, clicks, and consumer interaction with what hits their inboxes. Interestingly enough, the study found surprisingly high numbers of clicks for unsolicited email. Inbox behavior is always unpredictable, but a whopping 46% of consumers around the world are intentionally clicking on what is typically regarded as spam! Whether it’s unsubscribing, curiosity, or genuine interest in what’s being offered, 46% is huge.

That being said, it begs the question of deliverability. Getting delivered to a market that is just as likely to click as they are to not click, is a huge opportunity not just for email marketers, but any advertisers. Consumers who responded to the survey pointed out that malformed subject and from lines, grammar and spelling errors, and other deceptive factors all come in to play when choosing whether or not to identify a message as spam, or a valuable marketing effort.

An excellent read for anyone involved in the email marketing industry, consumers, and advertisers who may want to get started:

http://www.maawg.org/

http://www.maawg.org/system/files/2010_MAAWG-Consumer_Survey.pdf

http://www.returnpath.net/blog/2010/03/new-maawg-consumer-survey-half.php

As Facebook was estimating it’s total profits from 2009 to be $635 million, over half, or $350 million of that was attributed to performance marketing, where the advertiser pays only for measurable results.

Of that $350 million, $175 was attributed to social games like Farmville and the balance from growth in international markets. The exponential growth in the foreign markets is based in large part to “companies…. using the Facebook  advertising API to sell ads in bulk.” By using Facebook’s demographic targeting capabilities, companies are slowly realizing the promise from social media to have the ability to communicate in new ways with customers.

The projected estimate of 2009 income for Facebook is great news, as profits for the site appear to be doubling every year. In a recent article by BloggingStocks, the social networking site’s estimated value was placed at approximately $35 billion, with performance marketing income obviously a contributing factor.  With the potential for future revenue growth for Facebook, it looks as if their social data will pay off huge in the future.

In an act that was cheered by many, the controversial online marketing law “An Act to Prevent Predatory Marketing Practices Against Minors” first introduced in 2009 by state senator Elizabeth Schneider has been repealed as of Thursday. The law had faced many uphill battles from the time of its introduction and even more with the inclusion of a narrower measure earlier this year, thus leading the Maine legislative committee to vote for the repeal.

The law originally prohibited collecting health-related information from minors without parental consent, and also the sale or transfer of that information that would identify said minor, no matter how the information was gathered. The narrower measure introduced earlier this year just prohibited the collection of data from minors to market prescription drugs to them. Schneider withdrew that measure after coming under fire for the possibility of making the state liable both legally and financially.

From the beginning the law had faced many challengers, most notably from NetChoice-a coalition of web companies, namely Yahoo and AOL. The challengers pointed out that the law violated not only the First Amendment but also restricted free commerce. Other possible problems would be the prohibiting of newspapers from publishing information about minors, possibly prohibiting teens from receiving information and also preventing teens from registering for social networking services.

The Center for Democracy and Technology, a digital rights group, also argued that the narrower measures could hinder web companies such as websites, email services and social networking sites because their platforms are supported by advertising and the collection of information from users.With the repeal of this controversial law it will be interesting to see what the next step is in the complicated business of online marketing laws.

Source: MediaPost, Wendy Davis:  http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=124131&nid=112157.

Spamhaus has just released the newest block list to date. The Domain Block List (DBL) is Spamhaus’ newest feature, which allows spam filtering to be taken to a new level. The DBL is essentially constructed using the landing pages in the body of an email, which are based on domains and IP addresses. It is designed to work as a second stage of spam filtering, with the first filtering stage based on sender and source IP addressing information via Spamhaus’ Zen collection of block lists. Using these IP based block lists as the first stage prevents nearly 90% of spam from getting through to the mailbox. If the spam gets through the IP based filter, the spam needs to be further filtered, which is where block lists such as the DBL come into play.

The DBL is based on different domain criteria including the spam senders and sources, but it primarily uses the email landing pages, or the links that are contained within the body of the email message. This way, even if a spammer changes the source or sender IP address, the landing page or hyperlink is still associated with the same domain name or IP address. For years, spam filter software such as SpamAssasin has included URI and domain filters in its rule sets. Blocklists such as the SURBL and URIBL are currently being used with this software.  However, unlike these blocklists, the DBL was designed to work specifically along side the IP address based block lists.

Updating itself every 120 seconds, the DBL system detects and lists spam in real-time. Using an automated system and Spamhaus project team members around the world, the database is maintained 24/7. There is no public interaction involved and no public spam reports will be accepted or processed. Spamhaus uses spam traps and email flow monitoring as their primary method to obtain spam-linked domains. DBL can be used with SpamAssasin 3.3.1, open source spam filter software due to be released in the near future.

The DBL is designed to work in conjunction with IP based blacklists such as Spamhaus Zen. The Zen collection of blocklists is used to filter incoming mail based on IP addressing information, rejecting nearly 90% of traffic. The second stage is where DBL comes in. If mail is able to sneak through using Zen blocklists, more in depth filters are used, which check the message bodies including the domains and IP’s of websites advertised in them. This is done using software, such as SpamAssassin, that scans the message bodies for URI and URLS and testing these against URI blocklists like the DBL, SURBL, and the URIBL. The DBL alone can eradicate between 60 -90% of spam. Remaining spam, after both spam filtration stages, should be reduced to less than 0.5% total, with 0% false positives.

An article posted on Stuff.co.nz by Lois Cairns discusses how the New Zealand government is cracking down on business and individuals who tout the new unsolicited electronic mail laws. The article gave great insight into what the government is dealing with and ways they are changing their practices to better punish offenders. Included in the article were a few helpful hints to make the average consumer less vulnerable to inundated inboxes.

In New Zealand as of September 2007 it has been illegal to send commercial emails or texts without consent from the recipient. Yet the Department of Internal Affairs anti-spam unit has received over 2,000 complaints for unsolicited material in the last twelve months alone.

In the Unsolicited Electronic Messages Act, businesses that send out marketing material, either through email or SMS messaging must include an opt-out option. Though many companies have followed the new law the DIA is still receiving complaints. In the last twelve months alone 143 SMS message complaints and 1841 email complaints have been reported to the DIA.

In the past the DIA has dealt with these complaints through education and persuasion, but with so many recent blatant violations the DIA has turned to different measures. The DIA is hoping that with fines of $500,000 to companies and $200,000 to individuals who continue to send the unsolicited material the offenders will get the “message” and cease their illegal operations.

One way as a consumer to stop the unsolicited content is with pro-active steps to ensure your email address and phone information is not easily accessible. Here are a few tips to help counter act the problem and protect you:

• Only give your email to organizations you know and trust

• Do not put your email on any webpages

• Do not respond to unsolicited email

• Use a filter. Most web mail services and internet service providers already filter out much of the unsolicited mail.

• Be cautious when giving out your cell number or you could receive commercial SMS messages.

• Check terms and conditions before signing up for any contests. Check the privacy and consent policy before giving out personal information. Read the fine print.