Why Hasn’t the US Adopted Opt-In? It’s Time for a Rethink.

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Email Marketing

Fair warning: rant ahead.

I have been in the email marketing channel since 2003. In fact, one of my first outings was to the FTC Spam Summit in April of 2003. It was a very lively affair and standing room only for the most part. All constituents of the email channel were represented, and for two days the issues pertaining to our channel were debated and I left feeling that I had just lived an episode of The Twilight Zone.

Being new to the field, I was constantly gobsmacked that something as simple (simple, right) as email could engender so many passions and positions on its own future. You could argue that email to this day is still the one killer app that we all use and will continue to embrace. One piece of proof: your email address is the center of your digital persona.

In 2003 the CAN-SPAM act was passed, and with that law the building blocks were laid for “permission-based email marketing.” Following the law does not and will not ever grant you preferential delivery treatment. It’s just the minimum level of compliance that any legitimate company can (and must) adopt to ensure a legitimate basis for their marketing programs.

In some respects, the continued development of the email and digital channels over the past thirteen years has become ever-more “personal” as we battle the ever-increasing incursion of companies seeking data insights into our lives, surfing habits, clicks, purchasing, relationships, cat videos, etc.

So what has this got to do with opt-In?

I know every marketer reading this sends only interesting, wanted content, to only the people who want to receive it. You and I do it right.

But we know there are a lot of companies and marketers out there whose standards are lower. They’re complying with CAN-SPAM, all right, but at the lowest possible level. They batch and blast, sending vast volumes to multitudes, catching us all up in an email ecosystem where every inbox is half-full of unwanted things.

Under CAN-SPAM you are legally allowed to send unsolicited emails to folks until they say stop, by unsubscribing or marking an email as junk. It’s even more irritating than those phone salespeople telling you you’ve won a trip to Bali. It’s ANNOYING. I say this as someone who gets plenty of email he didn’t ask for.

More importantly, I say this as a marketer who understands the principle of the Commons.

In medieval times, in England and elsewhere, people grazed their flocks on sheep on land that belonged to no one, or belonged to the manor but was held for common use. Today, the Commons is understood to be a “general term for shared resources in which each stakeholder has an equal interest.”

The “Tragedy of the Commons” is the exploitation of the commons, which harms everyone. It’s actually an economic theory of a shared-resource system (the grazing land) where individual users acting independently according to their own self-interest (too many sheep for too long) behave contrary to the common good of all users by depleting that resource through their collective action.

The Internet is a shared resource. In regard to email, the spammers and the email markets who batch-and-blast (never mind that it’s legal) are burning up a scarce resource (our recipient’s genuine, unsullied interest in what comes into their inbox).

Actions to Protect our Email Commons

When you consider “retention-based” email versus “acquisition-based” email a lot can be shown (performance wise) for the mail streams that have the relationship with the subscriber versus the one that doesn’t. (Transactional emails generate about double the unique open rates as acquisition emails.)

Acquisition mail is not illegal to send here in the US

When you consider the email marketing channel in 2016 where do we stand? The debate and law over opt-in versus opt-out – in my opinion – is long overdue for an overhaul.

Can you imagine a world where WE manage our content experiences and NOT the smart marketer who can connect the data signals and send you communications that you didn’t expect to receive? (Let alone want…)

And can you imagine a world in which your email recipients all expected to get something from you? And overall, had a high degree of trust in the contents of their inboxes?

What’s Working?

Technical filtering is better:

The amount of spam is decreasing and that’s due to the diligent work that the receivers and filtering platform have implemented.

Industry communication is better:

There is a lot more distributed information available today than ever before. The stewards of the channel are established and prominent. SpamHaus, MAAWG3, ESPC, EEC, and the OTA, for example, all have published positions of appropriate sending behavior. In fact, you can’t join some of these organizations if you DON’T adopt these practices.

Testing tools are better:

Anyone sending commercial marketing email has an array of tools available to them so they can assess an email’s ability to be successfully delivered prior to them hitting the send button.

Results-based analysis is better:  

Anything in the digital channel can and will be tracked for performance and ultimately ROI. If something doesn’t work you can change your strategy and begin again. And oh, by the way, you can test your new game plan before it goes live.

Industry best practices have improved:

Digital marketers know more than ever what’s expected of them and the legitimate companies will always adopt strategies and methods that possibly will allow them to win the battle of the inbox real estate.

What’s Not Working?

The law:

We are working with an antiquated framework of permission and compliance (opt-out) that allows a very liberal gray area when it comes to email permission. Especially in the data-sharing market. Our existing environment almost encourages bending of the rules when it comes to co-marketing efforts and allows less than stellar behavior for those operators who choose to sully the commons.

So where does all this leave us?

The reality is that the email marketing channel has evolved WITHOUT the consent mechanism to follow so that consumers can manage their user experience. The new laws coming in Europe will mandate that companies that market to EU citizens have to comply with new rules that protect the rights of the subject to manage their own data. It puts the email recipient in control – and not the other way around.

It’s time now for the US to establish an “opt-in” methodology for marketing consent. Let’s revisit the CAN-SPAM act and update the legislation that considers the challenges for all digital channels, not simply email.

Opt-in should be the minimum benchmark and opt-out should be a thing of the past. Granted, CAN-SPAM was passed just 13 years ago, but that’s a lifetime ago digitally. Time for a change.

But you don’t have to wait for the law to catch up with what’s right. You can start by making your own communications opt-in, and make more effective use of transactional emails.

Check it out: Are You Compliant with Global Email Marketing Regulations?

The basics of opt-in: The Value of Opt-In Campaigns

Best practices in double opt-in: Build Bigger, Healthier Email Lists with Double Opt-ins and Preference Centers