Beyond CAN-SPAM:  The Nightmare Continues

Turn back the clock to the end of 2003.  A bunch of states had recently passed their own anti-spam bills, and California had just passed the then-notorious SB186.  Commercial emailers were freaking out because compliance with a patchwork of state laws for email is nearly impossible given the nature of email and given the differences between the laws.  The reult of the freakout was an expedited, and decent, though far from perfect, federal law called CAN-SPAM which, among other things, preempted most of the individual state laws under the interstate commerce clause.  Most of us noted that the federal government had never worked so swiftly in recent memory.

Now it’s mid-2005, and a new cycle of state email legislation craziness is underway, this time with Michigan and Utah in the lead.  Once again, the legislation is well-intentioned but incredibly impractical.  I haven’t heard an appropriate amount of kicking and screaming about this yet, so let me give it a shot.

The laws themselves are billed as “Child Protection Acts.”  They ban email advertising (and also other electronic forms of advertising, like IM, phone, fax) to minors for things like guns, liquor, gambling, porn, tobacco, and — one of the kickers — “anything else deemed to be harmful to minors or unlawful for minors to purchase.”  The bans are in place even if the child has requested the advertising.  The proposed solution is an email address registry of chidren’s email addresses which would act as a suppression list for mailers, is run by a third party, and costs a $7 CPM per suppression run, per state, based on the size of the input file, not the size of the matches.

Let me start running down the problems here:

1. The laws won’t work comprehensively, as people have to proactively register their addresses with state registries.

2. The laws won’t do squat to prevent international or fraudulent advertisers from hitting children with their ads.

3. People with multi-purpose “family” email addresses will have to make a black-and-white decision about being on the registry.

4. Compliance will be a nightmare.  Since emailers usually don’t have a state tied to an email address, they will have to suppress their entire file against each state’s registry.

5. Charging based on the size of the input file as opposed to the number of matches is ridiculous.  It punishes mailers with large files and is completely divorced from the “value” of the service.

6. The costs are outrageous when you add them up.  A $7 CPM seems low, but multiply it by 12 months (and some people think compliance means more than monthly suppression runs) and now multiply it by at least 2 states — with another 10 or so considering similar legislation, and all of a sudden, a mailer could be paying as much as $1 per name ON THEIR FILE per year.

7. The laws are too vague and potentially too broad.  A law that prevents advertising of anything else deemed to be harmful to minors or unlawful for minors to purchase has some weird and possibly unintended definition consequences.  One example:  apparently, in Michigan, it is illegal to sell cars to minors (odd for a state that includes Detroit and licenses drivers at age 16) — so automobile advertising is a “banned category.”  Another example:  Amazon sells DVDs that are Rated R — does that mean linking to Amazon is now problematic?

8. Anyone can sue — not just state AGs, so look out for a zillion nuisance lawsuits like the old Utah “no popup” law of 2003.

9. The laws may be unconstitutional for any number of reasons, and they may also be in conflict with CAN-SPAM’s supersede clause.

The kicker?  The laws are billed as “Child Protection Laws” — so who the heck is going to stick out their neck and sue the states to force the legality issue?  I’m all for protecting our children…and for eliminating spam for that matter, but I’m sick of governments passing laws with this level of unintended consequences.  Someone ought to make a law about that!

Email and Business Development: Two Great Tastes…

Interestingly, Chris Baggott offers compelling evidence for the opposite view he intended in his recent posting claiming email is not an acquisition tool.  I respect Chris as a thought leader in the email marketing services industry and am a fan of what he and his colleagues have done in building Exact Target, but I think he’s dead wrong on this one.

Email is a phenomenal customer retention tool, no question about it.  I totally agree with the claim that website owners should never let a prospect escape from their website without signing up for an email program.  It’s very true that spending money on website traffic can go to waste if a browser never buys or returns — or worse, if you pay the same search keyword fee time and time again to reach the same browser. 

However, his own post starts to lay out the reasons why email is, in fact, also really good for acquisition marketing:  because we all still love it, we spend a lot of time reading and responding to it, and we value the information it brings to us.  In short , it’s got all the strongest attributes of a great acquisition medium: reach, frequency and, most importantly, trust.  Isn’t that what advertisers look for when they are trying to figure out whether to spend their acquisition dollars in print, radio, TV, outdoor, or direct response vehicles?

In fact, more consumers and B2B professionals spend more time in their inboxes than they do consuming any other form of media — digital or not.  So, if you want to reach your target, you need to be using acquisition email.  And definitely never let a prospect come to your web site without giving you his or her email address for future contact!

Just because email is so extraordinary a retention and customer relationship tool, doesn’t exclude the reality that it also works really well to reach new prospects.  Smart marketers use email for both.

It’s Easy to Feel Like a Luddite These Days, Part II

In Part I, I talked about tagging and podcasting and how I felt pretty lame for someone who considers himself to be somewhat of an early adopter for not understanding them.  So now, 10 weeks later, I understand tagging and have a del.icio.us account, although I don’t use it all that often (quite frankly, I don’t have tons of surfing time to discover cool new content).  And I’ve even figured out how to integrate del.icio.us with Feedburner and with Typepad.

I’m still out of luck with Podcasting, mainly because my iPod and computer setup at home makes it really difficult to add/sync, so I haven’t given that a shot yet.

But today I had another two breakthroughs — I switched from AOL Instant Messenger to Trillian for my IM client, and I started using Skype.  Trillian is pretty cool and of course free.  I’ve never used MSN Messenger or Yahoo Messenger seriously, so the value for me is less in the aggregation of all three clients, and more in tabbed chatting.  Just like Firefox, the client lets you have all your chat windows displayed as tabs in a single window, which is much simpler and cleaner.  But better than Firefox, you can detach a chat window if you want to see it separately.

Skype is really cool.  I understand why the company will be sold for a good price, although I still don’t understand either $3 billion as a price or eBay as a buyer.  For those of you who don’t know what it is, Skype is voice Instant Messenger on steroids.  The basic functionality (for free) is that you can ping someone computer to computer, and have a real time voice chat if you are both online and accept the connection via your computer’s microphone.  If you decline the connection, it saves a voicemail for you.  The extras, which I haven’t tried yet, include SkypeOut (you can dial a real phone number from your computer for $0.02/minute, anywhere in the world) and SkypeIn (you get a phone number to give people so they can call your computer from a phone).  The quality was pretty good — certainly as good as or better than many cell phone connections, if not up to land line or VOIP standards.  Permission and usage/volume controls will be an issue here long-term since this is much more intrusive than regular test-based IM, but when it works, it is a beautiful thing.

Now, just like the vendor mayhem in the blog/RSS world (Typepad, Feedburner, Feedblitz, etc.), we need to get Trillian to incorporate Skype into its client so there’s a truly universal chat application.

Like all CEOs and VCs, I’m a big believer in the power of pattern matching. I just wrote a whole blog post about the limits of pattern matching after hearing the quote above at a board meeting recently. But then a little alarm rang in the back of my head, and realized that I wrote about the value and limitations of pattern matching here years ago with an even better quote from my father-in-law:

When you hear hoof beats, it’s probably horses. But you never know when it might be a zebra.

So rather that rewrite that entire post, I thought I’d just add onto it a bit here with a current example in my head about executive recruiting and hiring executives. But then I realized I wrote that as well – the myth of the playbook. Think I’ve been blogging too long now, or what?

So let’s focus on these two angles instead: first, how do you know when you’re in a situation where You’ve Seen One, You’ve Seen Them All, or if you’re in a situation where You’ve Seen One, You’ve Seen One? And second, how can you protect yourself from a “seen one, seen one” situation when you are approaching the situation as “seen one, seen them all”?

Here are three ways to think about the decode – is this a pattern or is it a one off?

1. The list is long. It’s not actually Seen One… so much as it’s Seen X. The longer the list, the more likely you’re seeing a link in a chain instead of a one-off
2. The item is more everyday/less bespoke. Back to my example in the playbook post I referenced above, hiring a late-stage CFO is bespoke. Hiring an entry level collections person for your AR team is a lot more everyday
3. The item is more specialized. No two companies are exactly alike. No two SaaS companies are alike, but they’re more alike than two random companies. No two B2B SaaS companies are alike, but they’re even more alike than two SaaS companies. B2B SaaS companies with email marketing platforms. B2B SaaS companies with email marketing platforms serving SMBs. You get the idea

And here are a couple tactics to mitigate against calling a pattern where a pattern doesn’t exist:

1. Do a premortem (I wrote about this concept in this post) and ask yourself “If this turns out to be wrong, what are the possible reasons it was wrong?”
2. Build a very small bullet-point level mitigation plan against the top three reasons you come up with

There’s no guarantee that the sound you hear is horses and not zebras. But these indicators may help raise the odds that your pattern match is on point or protect against an unexpected herd of zebras.