More Regulation in Our Future? A Webinar with the FTC

When it comes to privacy and behavioral tracking, the FTC has largely given the direct marketing and email marketing industries a mandate to “self regulate, or else.” We’ve done a pretty good job of that as an industry, but this year we may see some additional attention paid to our success. You simply must be aware of these issues, and so I’m happy to invite you to join me at a DMA/Email Experience Council webinar with the FTC later this month. Attend to get the full scoop (see details and a discount code below).

There are three things on the horizon that are of particular interest for email marketers and mailbox providers.

1. New Proposed Privacy Regulation: US Representative Rick Boucher (VA), Chair of the Subcommitte on Communications, Technology and the Internet, released a draft of privacy legislation on May 5th. This law proposes that the FTC enforce protections for individuals, informing them of the personal information that is collected and shared about them. Market reaction to the draft thus far has been mixed – many see this as a starting point to a long process. The DMA did quickly oppose the bill, arguing that it “has potentially sweeping impact for direct marketers” by requiring notice and consent from individuals prior to any collection, use or disclosure of information. While the draft does allow for operational and transactional purpose exclusions, it is not yet clear how this may be interpreted and therefore could reach well beyond simple permission requirements. It could cover any email marketer using shopping cart/purchase, browsing or even customer status data for customizing messages.

2. Expanded Powers of the FTC: There are a few draft bills in the Senate that may include a strengthening of the FTC powers around enforcement of CAN-SPAM and other technology-related issues. This may or may not affect direct marketers, and may end up being wonderful for the industry if it means more teeth for catching spammers. There is one aspect that has us worried – such bills may include new liabilities for companies, such as a delivery agent, seen to be “aiding and abetting” unfair or deceptive business practices, not just the original sender. Could it be that an ESP, MTA provider or other delivery automation vendor will be legally responsible for their clients’ actions? We (and the DMA) believe that could be over reaching.

3. Behavioral targeting protections. Guidelines under consideration by the FTC have been out for industry comment for over a year. We will hear in the webinar if the FTC believes there will be some movement on these protections in the next year or so. The industry is well advised to continue to self-enforce discipline on privacy consent and clear notice, opt-in permission, data usage practices and adoption of the guidelines developed by the DMA and other groups, which are soon to be released.

If that sounds partly scary and partly amorphous, well, it is. This is why we are excited to be speaking directly with the FTC in this webinar put on by the DMA/Email Experience Council and moderated by my colleague Stephanie Miller (who is also vice chair of the Council). I hope you will join us, and have your questions and comments ready!

FTC Legislative Update: Protect Subscribers. Protect Your Brand A webinar from the DMA/eec featuring Lois Greisman – Director of the Division of Marketing Practices, FTC’s Bureau of Consumer Protection and industry privacy and regulation experts (including Return Path’s Tom Bartel). The webinar is May 19, 2010 at 2pm ET. Get $10 off the non-member rate with code EECS.

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