• by Bill McCloskey , June 1, 2005

Today is moving day at my company. We have new offices in lower Manhattan and as I write, I'm surrounded by boxes and technicians running around getting phones up and running and Internet installed. Mail won't start arriving for weeks because no one knows we are here yet. However, I was able to log on to someone's wireless network near the office and get my e-mail and a nice offer from American Express's Small Business Group.

Because unlike snail mail, e-mail follows me instantly whereever I go. The offer from American Express's Small Business solutions department found me even though I won't see their direct mail piece for quite some time. With all the fuss surrounding spam, this simple truth seems to be getting lost in the shuffle: that business-to-business and business-to-consumer communications were irrevocably changed with the advent of e-mail, and any legislation affecting the future of e-mail must recognize that fact. For the general public (according to a new survey by Pew Internet & American Life Project), the whole spam problem is less a problem than the pundits or the government thinks.

Direct response e-mailers have been given a bit of a gift with at least one of the proposed amendments to the Can-Spam law: that P.O. boxes can be considered legitimate postal addresses in an e-mail. The much more important consideration is defining who is the "sender" of the e-mail. Take the lawsuit filed by the small California ISP Hypertouch against Kraft's Gevalia division. The suit claims that Gevalia was sending out misleading headers and using harvested e-mail addresses to send their offers. But is Gevalia to blame? Most likely not. The fault probably lies with a group of rogue affiliates that Gevalia may not have even been aware were sending their e-mail.

In fact, a large percentage of our clients use our software specifically to monitor their affiliate network for these kinds of violations, and they often find an affiliate that is sending out old creative or using non-approved subject lines. Expecting Gevalia to be aware of everything that their affiliates are up to is unrealistic. When a stray Gevalia e-mail arrives using tactics that are not approved by Gevalia, who is responsible? Who is the sender? Gevalia or the affiliate?

Take another example. We monitor e-mails every day that utilize the unauthorized use of another company's brand to get people to open the e-mail and click through. Companies like the Home Depot and Wal-Mart often have their logos embedded in e-mails without their consent as a come-on to get people to sign up for some unrelated service or mailing list. Can someone take Home Depot to court if an ISP receives an e-mail offering at unauthorized $25 Home Depot Gift Card?

The answer, in my opinion (if you believe in affiliate marketing as an industry, that is), is that the sender is the affiliate--and is ultimately responsible for the messages they send out.

Next week I'll be writing from the OMMA West show, where I'll be monitoring an e-mail panel, and where we will be addressing many of these issues. I hope to see some of you there.