Marketing with Technology and More

Checking your check box

I gave a speech to the Vermont/New Hampshire Direct Marketing Group on Friday about email marketing strategy.  Well I guess you can call it a speech.  I was scheduled to be there in person, and a last minute family emergency made it impossible for me to travel, so thanks to the organizers, I did a webinar to a room full of people.  It was an interesting way to present, and thanks to my friend Bud Reed at Timberline Interactive, I was able to interact with the audience (Bud was a great facilitator).

During the question and answer session, one of the attendees asked about one of the points I made.  I indicated that not only is it bad form to use prechecked opt-in boxes, but in my opinion (as a non-lawyer) it is a CAN-SPAM violation. 

I notice that direct marketers, particularly catalogers tend to love this technique.  It is kind of a "let me trick you into opting in, and if you don't look to closely, I may trap you as a subscriber" technique.  This is a throwback to the old postal days of let me do everything to build the biggest list, because if I don't sell you something, I can sell your name to some other direct marketer, and make some money off you that way.

It just doesn't make sense in the email world, and anyone who is prechecking boxes just doesn't get it.  This person made the point that before they prechecked the box, no one was signing up for their newsletter.  When they prechecked the box, hardly anyone unchecked in and rarely did they get a complaint.  Well, does this mean it is working?

Sometimes you have to dig a bit deeper to find out what is really going on.  In this case, the only way to get on this company's email list was by also requesting a postal catalog.  No catalog request, no email newsletter.  Additionally, there was no easy way to get to the opt-in form from the home page.  So where is all this going?  Well I guess what it says to me is just because your customer is not checking the box doesn't mean you have to check it for them.  It may just mean you are making it to hard for them to check it.  Check it out.

A week of victories

Well three great things have happened this week for the email world.  The first was AOL's position change on their enhanced whitelist.  Matt Blumberg at ReturnPath had a great post earlier in the week about this.  Matt also did a great job on CNBC's Power Lunch (you can see the video clip on his blog as well) explaining why the GoodMail/AOL plan to charge mailers for delivery was not good idea.

Today I learned that the Hawaii legislation mentioned in my earlier post was not brought out of committee, and is scheduled to be brought up again next week.  This is due in part to reservations  raised in testimony by the Hawaii Attorney General about the legislation (including references to CAN-SPAM and the potential legal hurdles).  I spent time on the phone with several State Senators in Hawaii, and it was clear from our discussions that they realized they were not given all the facts.  It is great to see a slow-down in this steamroller.

Finally, the court in Utah agreed to accept an amicus brief filed in the case their by several advertising organizations (including the Email Senders and Providers Coalition).  The only down side to this is that one major organization was missing from the list.  The DMA.  I had great hopes after conversations with John Greco that the organization was changing, and posted about this last year.  Well the DMA has burried their head in the sand and once again has turned its back on the electronic side of the direct response business. 

In a speech to the New York Direct Mail Club Greco said “I’ve heard some people were puzzled or even disappointed that the DMA did not join the amicus brief filed a few weeks ago by … organizations to raise concerns over the Utah legislation,” he said. “We knew if we did participate, it would get spun as ‘DMA Attacks Efforts to Protect Children.’ You know that is what the headline would be.” 

I guess regardless of the headline, those of us that pay dues to the DMA, would expect it would take the position that is best for its members.

The Art of Misdirection

In the past week, both Iowa and Hawaii have jumped on the child protection band wagon with because of what has to be one of the most misdirected lobbying campaigns designed to get legislators to believe that one state’s law can impact the flow of spam and pornography on the internet.  As the father of two children, I abhor some of the pornographic emails and adult oriented promotions that flood inboxes.  It is easy to get any parent or normal adult upset at the thought of such email ending up in a child’s email box.  That’s why lobbyists seem to have no difficulty in getting legislative sponsors for the ridiculous child registry legislation that has been surfacing in many states.

There is a major missing component in this concept.  Any organization willing to send such email today is unlikely to be deterred by the laws in one state, and this is complicated by the fact that much of this material is being sent from foreign countries.  With limited state resources, it is doubtful whether the states of Hawaii or Iowa will be sending the state police to Russia very soon to arrest the sender of any such mail.

What is not difficult is to see the financial motivation behind this legislation.  On the surface, the concept of new dollars flowing into state coffers from emailers who have to comply with the laws sounds wonderful.  Unfortunately, this money is going to flow from legitimate businesses that sell products that shouldn’t be sold to minors (i.e., automobiles, real estate, motorcycles).  These types of organizations that are legitimately sending relevant permission-based email will want to comply with the laws.  However it doesn’t take a Harvard economics professor to calculate that sending email in the future will become financially prohibitive if each state is charging more to process an email list against their registry than many companies are paying to send their mail, and these costs are incurred on a monthly basis.  When you dig a little deeper, and you look at the two states where such legislation has passed, Michigan and Utah, and realize that 80% of the revenue from those two states is ending up in the pockets of the single company that is able to process and house the registries, that the true objective of the lobbyists, who are so persuasively moving legislators is revealed.

The one good thing in the entire procedure is knowing that sometimes the legislative process does work, and sanity rules.  Recently Representative Jack Franks of Illinois made the decision to withdraw a similar bill, which he had initially sponsored after learning the true impact and effects that this poorly conceived legislation would cause. 

So for now, keep your eye on all of the states that haven’t passed this legislation and hope that other legislators see through this thin veneer of deception and misdirection.    If you would like to read more about how legislators in Utah and Michigan were hoodwinked, read Brian Livingson's great article published last year

More on the Michigan and Utah Child Protection Laws

My friend Matt Blumberg at Return Path weighs in on his blog on the difficulty of implementing the Michigan and Utah laws mentioned here recently. Matt is so dead on point.  How can anyone argue against a law tltled the "Child Protection Act?" 

What I think really stinks about these laws  (in addition to the nine items listed in Matt's piece, and those I mentioned previously)  is that the company that is doing the processing for both states allegedly helped legislators in both states craft the laws.  This is just a conflict of interest that should never have been allowed to happen.