CAN-SPAM 'Needs More Time' to Work

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ASPEN, CO -- The jury is still out on the CAN-SPAM Act, as seen by the fact that consumers' inboxes aren't any emptier than they were before Jan. 1, when the law took effect. That's the consensus from a panel discussion at last week's fourth annual Information Privacy Forum.


"Capitol Hill's perspective is that it needs more time," Jerry Cerasale, senior vice president of government affairs at the Direct Marketing Association, told attendees during a session on privacy legislation. "The law itself won't find a solution. The FBI may be coming out with a big law enforcement. At least I hope they will."


Consumers have not seen any change, said Ted Wham, general manager of personalized content and communication at Expedia Inc.


"Most of the bad actors are still able to do what they're doing," he said. "Basically, it hasn't worked."


Legislation alone is not the answer, Cerasale said, nor is technology alone. It will take a combination of the two -- or more.


"We tried self-regulation, but it didn't work," he said.


Jennifer Archie, a partner at Latham & Watkins LLP who is lead counsel for America Online, said consumers and marketers should not make the goals around CAN-SPAM too lofty.


"Congress said at the time that this isn't the solution, that it's just a component. So many were hoping for more. But we're going to see some more prosecutions," said Archie, who has filed 25 cases against 100 spam defendants. "The consumers need to trust CAN-SPAM, and they don't. They were told never to unsubscribe."


Archie said the news media has mentioned the compliancy components, but not effectively.


"Consumers don't trust what's in their inboxes yet," she said.


Bill Romenesko, privacy manager of the America's Market Intelligence Group at IBM, said the industry will see legislation increase before it shrinks.


Cerasale said transparency is key.


"It has to do with what you're doing with the data," he said. "Tell people what's happening with the data and why you need it."


In another session, marketers urged restraint when e-mailing.


"What if you don't want to get that e-mail?" asked Mark Irace, vice president of business development at Proflowers. "In the offline world, you had to truly think about who you mail to because of the cost involved. In the online world, you have to try to decide if it makes sense who to mail to. You can get people disenchanted with your brand very easily."


Lori Kryzewski, vice president of marketing and advertising at Barrie Pace Ltd., said e-mail plays a big part in her company's marketing.


"We don't e-mail people every day. We'll e-mail our customers every other week, every three weeks," she said. "We immediately opt out folks who don't want it. We're pushing ourselves to make it more relevant, more value-add."


At this point, Barrie Pace hasn't had luck with e-mail prospecting, she said, though she's willing to try it again.


Office Depot hasn't had much luck with another marketing tactic -- that of sending dual postal and e-mail campaigns, said Simon Leach, director of marketing and online merchandising.


"We still need to test that more," he said. "Do you do the same offer in both or something else?"


However, Irace said Proflowers has had great success in that area, especially with birthday and other annual reminders.


"We'll do it with an e-mail and an offline postcard," he said, "though we've found that we shouldn't make the postcard as personalized as we can make them."


The forum was sponsored by The Donnelley Group.


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