The foundation of the vibrant email marketing community we see today was built by a lot of people yelling at each other.
To say email marketing had a contentious birth would be a monumental understatement. In the late 90s and early 2000s, marketers and anti-spammers had such divergent views on how the channel should be treated, it seemed there was no room for compromise.
Many if not most marketers thought email would evolve into widely available lists for sale just like print direct marketing. Anti-spammers believed the only acceptable commercial email list-building practice was fully confirmed opt-in, where a subscriber must respond to a confirmation message before being added to a marketer’s list.
Some anti-spammers thought email shouldn’t be used for commercial purposes at all.
The atmosphere was best symbolized by two guys getting ready to swing on each other at a May 2003 Federal Trade Commission summit. The fistfight was prevented only when the wonderfully named and very imposing Commissioner Orson Swindle stepped in between them.
Email marketers and anti-spammers had irreconcilable differences and the FTC was stepping in to play referee.
The situation was so tense the FTC announced that there would be tight security screening at its spam summit, and warned panelists not to show up at the last minute.
“We’ve had a lot of death threats,” said Scott Richter, president of OptInRealBig.com, according to a DM News report I wrote at the time. “We thought about pulling out but [the FTC] assured us we’d be safe.”
At the time of the FTC summit, email looked to be almost dead as a commercial medium. Twenty eight states had passed anti-spam laws, creating an unnavigable maze of conflicting legislation on a channel that knows no geographical borders.
The question was how to tackle the ever-growing spam problem legislatively on the federal level without destroying email’s commercial viability.
Anti-spammers wanted unsolicited commercial email outlawed: Period. The now-defunct Direct Marketing Association, which was the primary representative of email marketers at the time, took the position that “unsolicited doesn’t necessarily mean unwanted.”
That FTC summit, along with a lot of behind-the-scenes lobbying by representatives of all interests, resulted in the The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or CAN SPAM.
Much to the chagrin of anti-spammers, the law did not outlaw unsolicited email. As a result, many derisively still call it the You Can Spam Act.
Also, contrary to popular belief, CAN SPAM didn’t even outlaw harvesting email addresses, though web scraping is an aggravating factor if an email sender gets busted violating other provisions of the act.
CAN SPAM was written to give law enforcement and Internet service providers the legal tools to go after bad guys while not being needlessly threatening to legitimate businesses.
To be sure, it set a very low legal bar for email marketers, basically requiring senders of commercial email to honestly identify themselves, honor unsubscribes and not much else.
It also limited private right of action to ISPs, preventing individuals from suing companies for perceived spam.
Critics claimed that since the CAN-SPAM Act didn’t require marketers to get explicit permission before sending e-mail to individuals, it would result in millions of new unwanted messages from so-called mainstream companies.
According to a report filed by the FTC two years later, that prediction did not come true. One reason the predicted spam avalanche never happened was ISPs had gotten very good at filtering out unwanted messages.
CAN SPAM also superseded the 28 troublesome and conflicting state laws, taking a lot of legal confusion off the table.
Meanwhile, the CAN SPAM ACT gave law enforcement the legal ammunition to go after the truly bad actors. And they did.
The CAN SPAM ACT has been leveraged in conjunction with other laws countless times against fraudulent spammers.
CAN SPAM has since been rendered somewhat irrelevant by more stringent laws, such as Canada’s CASL.
Even though it didn’t outlaw spam, CAN SPAM arguably saved email marketing when it looked to be headed for the ash heap of history.
Meanwhile, the development of anti-spam technology and an industry culture that has decidedly come down on the side of permission, led most marketers to embrace permission-based email marketing.
The debate is no longer about whether permission is a requirement in email marketing, but about what exactly constitutes permission. And the debates are far more civil now than they were in the late part of the 20th century and the early part of the 21st.
As a trade reporter who made a career out of stirring up crap, I do sometimes miss the yelling, though.