E-Mail Legislation: A Wakeup Call

Congress is writing legislation that will completely destroy what and how we do things for a living — and it's completely an unintended consequence of decent but poorly written legislation. The legislation is being touted as the anti-spam bill relating to e-mail marketing. If you haven't been under a rock, you realize that the future of the list business is e-mail marketing.

It's no secret that the topic of e-mail marketing has become a legislative hotbed in Washington. What many do not realize is that, of the sides being drawn by the legislative activities, none favor or are championing the needs of the list industry — specifically, the owners and renters of lists — except our own DMA. That is not enough: We all must talk to one another and speak to our elected representatives. If you read on, you'll realize that others are speaking to them and it's not good for us. We're a very responsible industry and our story and needs must be told to Congress.

The e-commerce bill that draws immediate attention is the Internet Growth and Development Act (H.R. 1685), sponsored by Rep. Rick Boucher (D-VA) and Rep. Bob Goodlatte (R-VA). H.R. 1685 is a broad bill that deals with more than just e-mail transmissions. This bill also has sections relating to electronic signatures (Title I) and online privacy (Title III), as well as speeding broadband Internet access (Titles IV and V), which can hurt us in the serving of e-mail (but that's another story).

The operative language is contained in Title II, “Electronic Mail Advertisements,” which defines the term “unsolicited electronic mail advertisement” as any electronic mail advertisement that meets both of the following requirements:

* It is addressed to a recipient with whom the initiator does not have an existing business or personal relationship.

* It is not sent at the request of or with the express consent of the recipient.

Obviously, the first requirement would completely stop all list rental actions of any sort dead in the water.

The second requirement is so tightly written that a decent attempt at opt-in –which our industry is trying to edge toward — could be construed as to no prior relationship, “not at the request of” and finally, “not expressly asked for.” This language basically kills the list business for any commercial e-mail. It's interesting that in the legislation the authors exempted all political e-mail.

This bill grants EMSPs (electronic mail service providers) the ability to decide what messages can be filtered from their subscribers, allegedly to avoid unwanted spam or UCE (unsolicited commercial e-mail).

Probably the most famous of these EMSPs is America Online. AOL claims that 30 percent of all electronic messaging hitting their facilities is in this category and costs them (and therefore their customers).

In reality, this legislation allows AOL to stop any electronic mail or advertising from entering their systems. For those of you already involved in e-mail, that's 30 percent of current users. That means that if you rent an e-mail list with AOL names on it (30 percent on average) those individuals will not get your advertisement, unless, I bet, AOL gets a financial piece of the transaction. That's analogous with the doorman of your apartment getting his cut of the postage.

Of course that's only going to happen if the individuals all expressly ask for your information. Through AOL and only through them (no rental needed), a prior relationship exists. Therefore, if you want to use electronic marketing and this legislation passes, AOL and some lesser EMSPs will be your only shot.

This is the future of the list industry unless we all wake up and call our representatives.

On the surface, this anti-spam bill sounds like mother and country. Don't let the Congress be persuaded by the “spam statistics.” Ultimately, the consumer is getting hurt by not seeing legitimate offers while the industry as a whole is getting hurt by loosing one-third of the potential universe.

Overall, everyone involved in the direct marketing community needs to become aware and get involved with the activities in Washington relating to Internet commerce. If we don't pull together and rally as industry professionals, we may all be out of the e-mail marketing business.

P.S. Check this URL for the complete texts of this legislation: www.techlawjournal.com/cong106/spam/default.htm

Roy Schwedelson is CEO of Worldata Inc., Boca Raton, FL. His e-mail address is [email protected]

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