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The Letter of the CAN-SPAM Law

The Letter of the CAN-SPAM Law Wendy Roth

Charlie Crist, attorney general of Florida and gubernatorial candidate, styles himself as an anti-spam crusader. Indeed, he proposed legislation to fight spam in Florida, and has made it a priority to enforce it. So how could Floridians complain that his election campaign is spamming them? Democrats and Republicans alike were infuriated that the email they received from Crist's campaign was unsolicited, and therefore spam, as reported by the St. Petersburg Times.

"He's not living up to his own standards," complained Dorothy Butler in the same newspaper; Butler is a Democratic recipient of Crist's email solicitation. "To me this is spam because I never asked for any of his political stuff."

Although that message did have instructions on how to opt-out, another recipient complained his repeated requests to be removed from the list went ignored until he wrote to the campaign reminding them of Crist's anti-spam credentials. 

"The irony and hypocrisy amazes me. Do I need to file a complaint with the attorney general's office? Anybody have the number for the Fraud Hotline?" wrote Joe Spooner, a Republican. Spooner eventually was removed from the list. 
In response to these complaints, Arlene DiBenigno, Crist's political director, maintained that "it's not spam, its political speech. We're not selling anything, we're not being deceptive. We love the First Amendment, and there's nothing more powerful than political speech."

It's a shame that Crist, who from all accounts has worked hard to fight internet fraud, is being tarred with that brush. But it's debatable whether the Crist campaign has learned its lesson. According to the site's privacy policy, recipients may opt out directly from his email campaigns or by writing to [email protected], which, at the time of this writing, doesn't work, and hasn't worked since December 2005, when it was first discovered by Brian McWilliam in his Spam Kings Blog

It's easy to roll our eyes at this story as just another example of the hypocrisy of politicians who write laws that exempt them, but it demonstrates that, when it comes to email, just because you're obeying the law doesn't necessarily mean you're following the rules.

The law most U.S. senders are concerned with is the CAN-SPAM Act of 2003.  When enforcement began two years ago, it was greeted with applause by marketers who wanted federal guidelines instead of stricter state-by-state regulations. But it was also met with derision by Internet watchdogs who complained that the act, rather than getting rid of spam, showed marketers how they… well, can spam.

Though you may argue over whether or not Crist's email messages were in fact "selling anything," as political speech this campaign is not subject to the laws against commercial email such as the CAN-SPAM Act of 2003. Savvy politicos know that CAN-SPAM and other anti-spam legislation don't apply to them… but they follow the laws anyway, as if they did. 

Complaints against Crist's email practices might not get very far in a court of law, but Crist's campaign was certainly a loser in the court of public opinion. Recipients hold email senders, whether political, non-profit or commercial, to a higher standard than what is required by the law. 

For example, the CAN-SPAM act doesn't require that email recipients opt-in to receive commercial email, just that those recipients have the opportunity to opt-out of email they don't wish to receive. Adhering to the letter of the law in this respect might keep a commercial emailer out of legal trouble, but recipients have a higher standard which, like it or not, senders must comply with in order to avoid complaints from consumers who didn't sign up to get "this stuff." 

Those consumers hold a knife to the throat of the ISPs that provide them service, and demand that the ISPs block mail from sources they consider spammers, regardless of the law.

The same mismatch between law and expectations can be found when it comes to honoring opt-out requests. When a recipient opts-out from receiving email, he expects the request to be honored immediately. The law, however, gives the sender up to ten days to honor that request regardless of the number of requests or their urgency. Neglecting to do so more quickly isn't fraud, but it's certainly bad policy.  

What makes poor email practices so damaging is that they cause the recipient to lump the sender, who may be merely hapless, together with the truly malicious? There are real criminals abusing email on the internet, spammers who aren't just gumming up your email inboxes with pharmaceutical ads but are spreading malware so they can commandeer your computer to spew yet more spam, or phishers who want to steal your password so they can steal your money. 

Although political emails aren't regulated by CAN-SPAM, they are regulated by the people who route them, who get them and who, the politicians hope, act on them. Ultimately, it's not the court of law legitimate email senders need to worry about; it's the court of the consumer and public opinion.

Wendy Roth is the training manager for Lyris Technologies, a pioneer in email marketing solutions since 1994. She works closely with enterprise-level marketing and advertising professionals to help them achieve their email-related objectives, and collaborates with engineering teams to ensure Lyris' products continue to be based on marketers' changing needs.

Analysts and data insights
There is no shortage of measurable details that one can track online. And now, beyond the traditional analytics from a site, there are data points coming from social media -- both structured and unstructured -- and other platforms. The explosive growth of data is only paralleled by the demand for that data. The challenge, however, continues to be in making sense of it all.

Just because you can measure it doesn't mean that you should look at it every day. Agencies and clients are looking for people to not only help them put in place all the technology they need to gather every possible metric that they might want, but also help them put dashboards, methodologies, and plans in place to make the best use of their time. They want strategists and analysts who can not only crunch numbers, but also tell them what should be actionable.

The client will say, "I see the line going up, but what should I do about it?" You can be there to provide the answer.

Content strategists and the people who can provide compelling content
The web today feels like a place I can turn to for an answer to anything. If I need to discover something, I can search for it and typically find it. However, in 2011, being able to get an answer to my question isn't enough. Consumers might want that answer in video format at their desktops, in a scalable format on the iPad, and in a written summary on their phones. The brand that can provide the content to the consumer how they want it and when they want it will be the winner of that consumer's eyeballs. And then, the marketer who provides the highest quality of that distributed content wins a share of the wallet.

Digital storytellers who can produce quality content, in written or visual form, will only increase in demand through 2011, as the diversity and quantity of devices that can connect to the web continues to increase.

Producing content isn't enough. Brands that put the right content in the right places will win, and the way to win is through great strategy paired with those people who can produce great content. Those two groups will have to coincide and collaborate in the same place.

Anything mobile
With the iPad taking its place as one of the hottest holiday gifts of 2010 and no end in sight to the growth of smartphones in consumers' pockets or purses, mobile is expected to be an even bigger advertising vehicle in 2011. If brands want to reach the mobile consumer, they're going to need agencies to provide the talent to get it done.

Mobile application developer, mobile strategist, mobile producer -- you name it, agencies are hiring or training for it. If you already have the right foundation, it isn't hard to get hands-on experience building an app or a mobile-friendly website, so this job path can saturate quickly (as social media did this year). But right now, it is hot.

As a career move, I recommend finding a niche in mobile quickly that can scale outside of simply mobile. For example, one can spice up their interaction designer or analyst resume by having mobile experience laced somewhere within.

Financially minded marketers
I can't tell you how many people thought that getting a career in marketing or advertising would get them out of dealing with math. The recession hit, and now those math skills are being challenged. Companies and the executives that run them are demanding greater accountability for every dollar spent. They want to know which half of the advertising budget is wasted so they can slash it and then optimize the half that "seems to be working."

The marketers who are able to crunch numbers, identify patterns, and represent opportunities up to the C-suite are going to be the ones who more quickly move closer to that suite themselves. Companies want to minimize risk wherever they can, and those who know how to paint that picture stand to have greater success in the board room. This, of course, is not necessarily a predictor of success in the marketplace, but fine-tuned finance skills will give you a greater chance at survival.

Our economy still has some bumps and bruises to recover from before companies can hire frivolously again. In all likelihood, we might not see that era again for as long as we maintain a memory of these last two years. So, for many small businesses -- considered the lifeblood of our economy and a likely home for many of you reading this -- they will be looking for versatile people. They want to hire people who have skill "mash-ups," such as designers who understand usability or QA folks who can write. That versatility provides additional value to the company and insulates profitability from varied workflow on different sides of the house.

What's not here
You'll notice that one mainstay of 2010 isn't represented on this list. In fact, I only mentioned "social media" in the context of analytics and data insights. I found it hard to list a job title in social media -- not because it isn't hot, but because it is such a fragmented, crowded, and confusing space.

Too many people continue to think that a job in social media is one that allows you to rap on Twitter and Facebook all day and hob-nob with other socialites at an occasional conference. The reality is that a fortunate few can ride social media up the corporate ladder without adding diversity to their repertoire. Financially minded marketers continue to raise questions about social media's applicability and return and will expect more from their investment than tweets and engagements.

I also didn't include some garden-variety job titles such as developer, art director, marketing manager, or others. And, I didn't name specific technology qualifiers to bet on, such as Flash, iPhone, C# (as in, Flash designer or iPhone developer). All of these have their peaks and valleys throughout the year based on news ("What?! The iPad doesn't support Flash? Sack them all!"). They are dependent on accounts that arrive or depart from agencies, and they are dependent on where the tide is related to outsourcing or bringing work in-house on the client side.

Regardless of what jobs are hot in a given year, there are some foundational values that should be ever present in any job seeker. At the top of that list is passion. Hopefully you are already desperately passionate about something on this list, and, if you are, you'll be much more successful at it than something you chase hoping to double your paycheck each year. In anything hot, there will be folks nipping at your heels to take your spot, so you had better enjoy it in order to improve your chances at staying ahead of them.

If you do snag one of these hot jobs, hang on tight -- because it will be a wild ride through 2011. There is a lot of reason to be optimistic, and I am thankful every day that I'm in this industry. I was fortunate to find passion a while ago in a hot new industry, and I hope the same happens for you.

Reid Carr is president of Red Door Interactive.

On Twitter? Follow Carr at @icowboy. Follow iMedia Connection at @iMediaTweet.

Wendy Roth is senior manager of training services for Lyris, Inc., a pioneer in email marketing and other online marketing solutions since 1994. She works closely with marketing and advertising professionals to help them understand how Lyris'...

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