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How Do-Not-Track Could Destroy Email Marketing


By Ken Magill

The current push for a do-not-track mechanism by the Federal Trade Commission has the potential to lay waste to the permission-based email marketing industry.

Yet, as the debate unfolds, the industry is for the most part not even in the room.

The FTC last week released its final report, “Protecting Consumer Privacy in an Era of Rapid Change.” The report called for, among other things, “a universal, onestop choice mechanism for online behavioral tracking, often referred to as Do Not Track.”

According to the FTC, a do-not-track mechanism would include five key principles:

“First, a Do Not Track system should be implemented universally to cover all parties that would track consumers. Second, the choice mechanism should be easy to find, easy to understand, and easy to use. Third, any choices offered should be persistent and should not be overridden if, for example, consumers clear their cookies or update their browsers.

“Fourth, a Do Not Track system should be comprehensive, effective, and enforceable. It should opt consumers out of behavioral tracking through any means and not permit technical loopholes.

“Finally, an effective Do Not Track system should go beyond simply opting consumers out of receiving targeted advertisements; it should opt them out of collection of behavioral data for all purposes other than those that would be consistent with the context of the interaction (e.g., preventing click-fraud or collecting de-identified data for analytics purposes).”

(Emphasis and paragraph breaks mine)

Does anyone see an exemption for email in any of the five principles?

Nope. Because it’s not there.

And it’s hard to imagine a do-not-track mechanism that is “comprehensive, effective, and enforceable” and “opt[s] consumers out of behavioral tracking through any means” that satisfies the FTC and gum-flapping privacy advocates that doesn’t include email.

But as do-not-track seems to be inching closer to reality, the email marketing industry has been strangely silent on the issue—an issue that has the potential to seriously damage their ability to craft offers based on customers’ behavior.

They’re ignoring the issue at their peril.

“I think everything going on in privacy right now should concern the email industry,” said Trevor Hughes, president and CEO of the International Association of Privacy Professionals. “Anytime anyone talks about online privacy, they’re talking about email as well. But for the buttons at the top of the screen, an email application that is rendering HTML is basically a Web browser.”

Hughes added that he believes the email industry has not been engaged in the ongoing debate over online privacy because they don’t think it involves them.

“There may be a sense in the email industry that with the Can-Spam Act and with email authentication and with deliverability starting to be understood pretty well, and a sense that industry best practices exceed regulatory mandates, that the email industry has cut its deal,” said Hughes.

“They haven’t been engaged [in the privacy debate] and the risk for the email industry is that their online colleagues negotiate a result that works for traditional online marketing and totally messes up email,” he said.

For example, abandoned-shopping cart emails—which when implemented typically account for low-single-digit percentages of marketers’ outbound email yet drive double-digit percentages in revenue—could end up being subject to a do-not-track scheme negotiated without email representatives even at the table.

Imagine if the scheme ends up being opt-in based. That’s what privacy zealots want, after all. The abandoned-shopping-cart email would be dead.

Dennis Dayman, chief deliverability and privacy officer for marketing-automation firm Eloqua, paints an even scarier scenario.

“If you look at some of the bills that have been pushed around for the last year or two, the definitions are so broad that they really could end up putting in the idea that you need to get permission from a user to even use or process a click,” he said. “And that would ruin targeted email.”

And while all this is happening, the email marketing industry is apparently sound asleep.


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Terms: Feel free to be as big a jerk as you want, but don't attack anyone other than me personally. And don't criticize people or companies other than me anonymously. Got something crappy to say? Say it under your real name. Anonymous potshots and personal attacks aimed at me, however, are fine.

Posted by: Andrew Stephens
Date: 2012-04-20 03:24:29
Subject: How does this play on click-thru engagement?

One of the primary analytics that we use for autoresponders is the click-thru in one of our mailings. Will this issue affect my triggered autoresponders that activate upon clicking a tracked link?
Posted by: Ken Magill
Date: 2012-04-04 12:46:26
Subject: What to do

I've got an interview request in to the DMA for Linda Woolley, their EVP of government affairs. She's apparently all over this issue. I will be asking her what marketers can do to help.
Posted by: Kirk Gray
Date: 2012-04-03 19:39:14
Subject: What the heck?

So is it time for a good old letter writing campaign? How ironic that we would need to email our congressman to this to people. What about those obnoxious co-workers that use Outlook's return receipt and open function, isn't that tracking, would that be exempt? To me it looks as though the big box sending tools would be all over this, it could severally limit the number of sends, and thus their income! Is this going to apply to social media too? I mean honestly, I pay my ERP an annual subscription, shouldn't some of that money go to PR and Gov't Relations? Ken, what do we need to do...
Posted by: David James
Date: 2012-04-03 17:26:08
Subject: Another example of the DMA asleep at the wheel?

Supposedly, the Direct Marketing Association's legislative group is a crack team. Yet, silence?!? When big-time Email companies take big booths and support all sorts of DMA might be something to look into. Time to wire the Washington office! Some of these regulations could make Germany's very restrictive rules look like child's play. Don't ya think?