Category: Messaging Laws & Compliance

In the novel 1984, novelist George Orwell predicted a future where the government had complete control over the populace, monitoring their every move through technology. An enduring classic, the book introduced the concept that “Big Brother is watching you.” In fact, it proved to be such a seminal work that the term “Orwellian” became synonymous with technologies that are used in such invasive matters of privacy.

Of course, in today’s society we really are in the era of Big Brother, except that the monitoring technology is (or at least supposed to be) designed to protect us, not control us. Opponents of the infamous Patriot Act might disagree but that’s an issue for another day, or blog for that matter…

In some cases, marketers have implemented monitoring and tracking ideas that are almost as nefarious as those Orwell wrote in 1984. This has been exacerbated by online technologies. While for the most part, being online is relatively safe, the proliferation of viruses, Trojan horses and other applications designed to extract information about consumers has caused many to be a lot more cautious. Unfortunately for digital marketers, this skittishness is hurting the burgeoning use of what is being called behavioral targeted messaging.

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Note: mobileStorm does not, in any way, condone the sale or use of illegal substances.

By now, everyone’s heard of the frat-boy drug busts at San Diego State University. Most people were shocked at the scope of the narcotics networks. Not to mention the homeland security aspirations of one arrestee—which kind of underscores the folly of the “wars” on drugs and terrorism. But the silver lining here is for digital message marketers: It’s a chance to see how SMS marketing can be effective for the widest variety of, er, industries.

According to investigators, the accused dealers sent out at least one mass text-message to their database of satisfied customers, offering a special sale on cocaine. Said the SMS message (exact grammar/punctuation/spelling intact): “Attn faithful customers both myself and my associates will be in vegas this coming weekend bad news is we will not be here to complete sales good news is from Now to until midnight thursday gs are 35 eights 110 quads 210 so stock up, we will be back Sunday night.”

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It’s inevitable with any new form of marketing that after awhile U.S. laws and regulations will be established both to protect consumers and limit what exactly constitutes an acceptable message. It had happened first with print, then voice, then fax, then email and now the cycle continues with mobile messaging. In the past few months, the most of the major carriers have either implemented or tightened their restrictions on mobile marketing and this trend shows no signs of abating any time soon.

In one sense, these new requirements actually point to a rapidly maturing mobile marketing industry. The last couple of years were essentially the testing and proving grounds for text messaging, mobile content and most recently mobile search. Companies were largely in an experimental mode, trying out various combinations of mobile campaigns to see what worked and what didn’t. Now, in 2008, these companies have largely settled on the types of mobile initiatives they want to implement and are starting to launch such programs in earnest.

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Earlier this month, Judge James B. Zagel became part of the email marketing industry’s history with his ruling on the landmark e360 Prospect vs. Comcast case. In his decision, Zagel dismissed all of e360’s claims outright, while keeping in play Comcast’s countersuit against the company. Ouch.

To me, the most fascinating of e360’s four charges was that by Comcast blocking their emails from being received by its subscribers, the ISP was essentially in violation of the First Amendment and the right to free speech. Interestingly enough, the judge agreed that “the idea of blocking seems at odds in some way with free speech protection, even though there are limits imposed on the free speech protection of commercial speech, which is, I infer, the principal, if not the only, business of e360.”

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We’re no closer to reconciling concerns about the use of online behavior data. Indeed, several things happened over the past week proving that marketers, controllers of Internet information, and consumers aren’t likely to agree any time soon on the use of online-behavior information.

Because of concerns by both consumers and the government, the U.S. Federal Trade Commission (FTC) late last year created guidelines to help the marketing industry self-regulate itself in the behavioral ad targeting space (see the proposed principals). Last week, in response to the FTC’s proposed rules, various industry groups and individual businesses said the FTC was too broadly defining “behavioral information.”

Marketers don’t have a problem with protecting personally-identifying details like names, physical and email addresses, and phone numbers. But the FTC, they said, does not do enough in its proposed guidelines to distinguish between this type of information and so-called “non-personally-identifiable information,” or N-PII, which is anonymous user data. N-PII is the information used by behavior-based technology to decide what kind of ad to display onscreen.

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A bigger worry than lead paint on toys?

Apple made headlines around the world when slave-like conditions at its Chinese manufacturing facility were exposed. Last year the proliferation of China-made toys with lead paint caused outrage among Westerners. But while these two events angered consumers outside the Middle Kingdom, Chinese consumers themselves have reason to get up in arms: A recent tidal wave of SMS spam.

More than 200 million of the country’s mobile phones—about half of all China’s cell phone users—were sent spam from seven advertising services companies. Consumers’ personal information, including cell phone numbers, were somehow obtained by the ad companies.

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We’ve talked about behavioral targeting in the past—particularly about the worries that consumer advocates have about privacy. The issue underscores just how important other targeted marketing—particularly permission-based digital messaging—can be to the marketer who wants a comprehensive, multi-channel campaign to which consumers will truly be receptive.

A proposed New York state law can make things more challenging for the digital marketer—particularly the one who shuns best practices (such as getting permission from consumers before sending out advertisements, and ensuring privacy of the consumer’s contact information). It’s a response to the aforementioned concerns about behavioral targeting, in which ads are served up based on a Web user’s behavior (if the user has browsed sites about animals, the site will show ads for pet shops, for example). In a nutshell, the law would make it illegal for certain Internet companies to use personal information without the consumer’s permission.

While this law is specific to the state of New York, because of the no-borders nature of the Internet, marketers nationwide would end up having to follow the law as well, whether or not they do business in the state or advertise to the state’s denizens. At fines of up to $3000 per violation, no wonder marketers are watching this development carefully.

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Recently, the email sending industry saw some fairly significant issues with delivering email to Yahoo. Senders trying to deliver bulk emails to their Yahoo subscribers found these to be continually “deferred”, or temporarily bounced back. It was later discovered that Yahoo had upgraded their filtering systems, which caused this continuous deferring. Since then, they have fine-tuned their systems, and are reporting that the issue has been resolved. Yahoo also noted that any sender still experiencing their mail being deferred is an issue that the sender will need to resolve. I would like to discuss both the mechanics of mailing systems, with respect to deferring, as well as why some ISPs (like Yahoo) choose to defer messages.

MTAs Explained

To the average individual, sending email is all about composing a message and clicking the “send” button. The message then is somehow delivered to the recipient. However, there is a whole lot of technology that happens in those few seconds when the message is transmitted. Here’s a simplified process flow:

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In the world of email deliverability, technologies and methodologies are in a constant state of flux. ISPs have to be on the alert for new spam and virus attacks, and as a result are constantly changing their blocking and filtering technologies to combat these problems and to protect their customers. When it comes to delivering email to the Inbox, ISPs also have to be careful about what email they accept, especially regarding senders from which they have never seen email traffic.

A classic example of this is where a company may start with or switch to a different Email Service Provider, and as a result will be sending their email from a brand new IP address. From an ISP’s perspective, this is like “the new kid on the block” – they’ve never seen email traffic coming from this new IP address. They don’t know if these messages are legitimate or simply a spammer that has decided to switch IP addresses. Thus, they are going to be very cautious about the email coming from that new IP address, and will scrutinize it with the full extent of their spam filters until they can ascertain what kind of email is being sent and its impact on their network. If the messages sent generate complaints or high amounts of hard bounces, the ISP will most likely not remove these filters and may opt to bulk and/or block those messages altogether. However, if the messages don’t generate complaints, and are sent to valid email accounts, the ISP will most likely turn down their filters and let email pass through more easily. By the very nature of sending from a new IP address, the sender is building either a good or bad reputation with that ISP.

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Short blog this time — it’s been a crazy week. The majority of my time has been spent primarily on two areas:

1. Helping to set up our clients on our system – meaning setting up their email, DNS, and authentication settings.

2. Working with potential and current customers on delivery best practices – maintaining clean lists and using a confirmed email opt-in method.

Folks, I can’t stress enough the importance of these two items. If you send email, and want to have good deliverability, you have to follow some simple rules:

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