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Those of us who work in the email marketing industry are very familiar with the dreaded CAN-SPAM act. Those of us who deal with some of the less experienced email marketers on a daily basis also know how frustrating it is when a marketer justifies their latest ‘blast’ as being “CAN-SPAM compliant”.

The CAN-SPAM act is Americas answer to anti-spam legislation and in a nut shell specifies that emails sent to consumers should allow subscribers to “opt out” of receiving further emails from the same organisation e.g the minimum requirement to email an individual is that an unsubscribe link must be provided and the name and address of the sending party should be readily available to the recipient.

Many other parts of the developed world instead specify that a consumer must “opt in” to receive marketing material for an organisation. In the “opt in” example the consumer knowingly and intentionally subscribes to a specific list/organisation for marketing materials before the marketing commences. Permission to send bulk email to the consumer does not extend beyond that organisation unless explicitly specified within the privacy policy and often through the addition of a separate check box.

The problem with the CAN-SPAM legislation is that it allows companies to relentlessly spam a consumer until they opt-out and is considered very bad practice among more experienced email marketers who are after a long, sustainable 1-1 relationship with their subscriber base.

In addition to the contribution the USA have made to the email marketing industry in the form of this CAN-SPAM legislation, one of the American Attorney General’s offices in Maine last month went one level further by forcing a Government organisation, the Maine Fisheries & Wildlife Department to disclose its list of email subscribers to a private sector organisation for free under the Freedom of Access Act.

The email address list owned by the Maine department for Fisheries and Wildlife had been collected online when residents or visitors to the state of Maine made applications for permits to hunt or fish within the state and to register boats, snowmobiles and ATVs.

These users gave their email addresses for communication in relation to these applications and some in addition also chose to receive the departments periodic informational emails and was therefore in keeping with good practice by being an entirely opt-in list.

When an individual approached the department for fisheries and wildlife and asked for the list data, the department originally declined to provide the list stating that the list was not a public record and therefore not subject to a Freedom of Access act. The individual then appealed this decision through the Attorney Generals office who overruled the decision. By doing so the Attorney Generals office agreed for this list to be given to a 3rd party who would under the CAN-SPAM act be free to email this data and therefore turn this list into an opt-out based list.

The organisation represented by the individual making the access request was the “Sportsman’s Alliance of Maine” whose objective is to promote conservation of Maine’s wildlife resources and to be an advocate for hunters, anglers, trappers and gun owners throughout the state.

The sportsmans alliance (SAM) openly publish via their updates page on their website that “The SAM Board has approved a membership recruitment and retention plan for FY 10 that outlines the methods we’ll use to recruit new members and retain current members.” and that during 2010 “we will aggressively market SAM life memberships and offer payment plans that will allow members to achieve life status over a period of two to four years.”

Although the work that the sportsmans alliance does sounds relevant and targeted towards the type of people who would have been on department of fisheries and wildlifes list, the issue still remains that the people who will receive emails from the Sportsman’s alliance will have not signed up to receive this type of email and there is nothing legally which prevents the Alliance from selling or renting this list to other organisations.

On one hand, you have to acknowledge that the Sportsmans Alliance has clearly spotted an opportunity, and one that has ultimately been recognized as legal within the state of Maine. They are now able to grow their organisation through marketing records (circa 100k of them) which resulted from a freedom of access request, however on the other hand this sets a dangerous precedent. The precedent that organisations that exist purely for profit may also be able to benefit from this type of freedom of access request not just within Maine and not just from the fisheries and wildlife department but potentially all over America and from all Government departments, where is the protection for the subscriber?

Let us know your thoughts using the comments box below.

For more information on this Freedom of access request please see the following press release from the Maine department of Fisheries and Wildlife.

http://www.maine.gov/ifw/notices/emailList.pdf