Legal
Eric Goldman is Associate Dean of Research, Professor of Law and Co-Director, High Tech Law Institute, at Santa Clara University. And he blogs about legal stuff, often stuff relating to the internet and privacy. I find his blog a must read. So he’s a good guy to turn to when you want quality analysis of the RNC’s first round loss in their lawsuit against Google. And here it is, perhaps a bit delayed, but still worth reading.
Mike Masnick from Techdirt’s got a scathing breakdown of how the judge just wasn’t buying what the RNC was selling; derisively detailing their failure to prove Google bias against right-wing political senders. It’s definitely worth a read. He closes with saying that with election season upcoming, maybe that will spur the RNC to appeal the ruling. Who’s he kidding? We know this isn’t the end of it.
As mentioned earlier, the FTC recently announced a proposed settlement with Experian, taking action against them for allegedly sending commercial emails while claiming those emails were transactional in nature. Meaning that users effectively couldn’t opt-out from email messaging that was ultimately believed by the FTC to be commercial in nature.Writing for the Ad Law Access blog, Gonzalo Mon, advertising lawyer at Kelley Drye & Warren, explains more about what’s going on here and what marketers should be aware of — the top point being, be very careful about what you call transactional. The “primary purpose” measure is something that the FTC takes very seriously. A short but important read, in my opinion.
Remember that the RNC had sued Google, alleging that RNC emails were being unfairly dropped into Gmail spam folders due to political animus on the part of Google? Well, so far, things aren’t going in the RNC’s favor. Judge Daniel Calabretta said that while it was a “close case,” the political committee had not “sufficiently pled that Google acted in bad faith.” The judge is leaving room for the RNC to re-file, so I’m sure this isn’t the last we’ve heard of this. Read more here and here.
This is an important one to share, because it highlights what can happen if you try too hard to characterize your emails as transactional, when they’re probably not. Leave out the unsub link and see what happens — you can end up with a poor sending reputation, a pile of spam complaints — or even end up getting the evil eye from the US Federal Trade Commission.Don’t risk it!Read the news release from the FTC here.
Mike Scarcella, reporting for Reuters: Google has hired law firm Perkins Coie to help defend it against the RNC’s spam filtering lawsuit. “While Perkins long has provided legal services to the Democratic National Committee in matters of political law, and to political candidates, most of the lawyers fielded to defend against the RNC’s claims focus on privacy, security and business litigation.” Read it all here.
There’s a term you don’t hear every day: electronic mail fraud. Apparently it’s just one of a litany of charges brought against four employees of a company called Adconion. Per Brian Krebs: “The government alleged that between December 2010 and September 2014, the defendants engaged in a conspiracy to identify or pay to identify blocks of Internet Protocol (IP) addresses that were registered to others but which were otherwise inactive.”What we have here are (alleged) bad guys (allegedly) engaging in fraud to obtain big chunks of IP addresses which were then (allegedly) used to send (alleged) spam. Yuck.Bad guys ruin everything for the rest of us. One of the big reasons ISPs and MBPs are suspicious about mail from IP addresses with no significant mail history is probably because of garbage like this. Using large swaths of IP address space (more than 65,000 IP addresses) and attempting to evade spam
“Is this message transactional, or is it commercial?” That’s a question I get asked quite regularly as a deliverability consultant. Note that I am not a lawyer, so I can’t give you legal advice. I can, however, provide my layman’s interpretation and encourage you to investigate for yourself, suggest to you where you need to look, and you can throw it all to your legal counsel, for a final ruling on the matter, if needed.Assuming you are based in the US and are sending (only) to US-based recipients, the US federal CAN-SPAM law applies. The text of the law itself (section 3) provides a fairly straightforward definition of what constitutes a transactional message, and the FTC later published even more helpful clarifying definitions — which is what you should read, memorize, and bookmark for future reference. It starts with this. It’s transactional, if the primary purpose of the email message is:to facilitate, complete,…
What is COI/DOI? It’s just address validation and permission verification — you send a welcome or verification message and the recipient has to click on a link to prove they want the subscription. And it’s not a new thing, here’s me talking about it on this very blog fifteen years ago.I consider the terms “double opt-in” and “confirmed opt-in” are interchangeable. I find that most of the time, internet security and anti-spam folks call it COI, and marketers and some deliverability folks (like me!) call it DOI. When doing so, they refer to the same process of requiring an active response to the initial welcome or verification email.There are a lot of good reasons to implement COI/DOI, but today’s specific question is — does Germany “require” it? Ultimately this is a legal question, and I’m not a lawyer, so I’m not qualified to answer legal questions. So this is not legal…
Dan Graham of Austin, TX has an interesting side hustle, going after telemarketers violating the federal Telephone Consumer Protection Act (TCPA). I’m glad he’s doing it, but the problem with this sort of thing has got to be how time consuming it is. I already have a full time job, and I just can’t imagine the time and effort would take to actually sue these spammers in court.