Email Privacy ‘Regulation’ in the Age of Big Tech

By April Mullen, Chad S. White

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Imagine if CASL was passed without first having a public comment period so businesses and other organizations could have their voices heard? Imagine if GDPR went into effect three months after it was passed instead of after a two-year transition period? Imagine if CCPA applied to people all over the world and not just people in California?

All of that isn't far off from what the email industry just experienced with the rollout of Apple's Mail Privacy Protection (MPP). Announced on June 10 and implemented just three months later on Sept. 20, this sweeping set of privacy features:

• Affects nearly half of all email users
• Affects how the email marketing industry reports email performance, segments and suppresses audiences, manages inactivity, optimizes subject lines, optimizes send times, conducts geotargeting, and designs emails
• Caused email service providers to have to race to change the coding of their marketing platforms to ease the impact on their customers based on beta software that changed multiple times — and all right before their codebases are locked down for the holiday season
• Caused marketers to scramble to change their tactics to try to maintain their ability to create compelling subscriber experiences and meet their business goals
• Will cause most consumers who enable MPP to receive more email than they would otherwise, as well as emails that are less relevant
• Hurts the ability of Google, Microsoft, and other mailbox providers to protect their users from unwanted and excessive email by making it more difficult for senders to live up to the engagement-based spam filtering standards, which have been undermined by the depreciation of opens by Apple

Normally that level of consumer and business disruption could only be caused by governments. However, in the "Age of Big Tech," private companies like Apple, Google, and Microsoft wield just as much power as public entities — but with much less oversight or transparency. For example, as far as we're aware, MPP was conceived and implemented with zero consultation with the ANA, any email service provider, or anyone else in the email marketing industry.

Marketers Are Not the Enemy

Perhaps Apple thought that inviting feedback from the email marketing industry would only lead to calls for MPP to be watered down or for the opt-in language for MPP to be far less biased. They wouldn't have been wrong about that.

However, they likely would have found support for many elements of MPP, including the elements that have the biggest impact on increasing privacy for this permission-based marketing channel, while doing the least harm to marketers' ability to send relevant emails at an acceptable frequency to their subscribers. Those elements would include:

• Generalizing a subscriber's IP address
• Obscuring the time of email opens
• Obscuring device information
• Blocking forward tracking

It's important to remember that marketers are consumers, too, and that many email marketers are very supportive of increasing email privacy. In fact, many email marketers regularly stick their necks out and engage in internal battles within their companies to guide their executives away from short-term company-centric strategies toward long-term subscriber-centric strategies grounded in building relationships through respect and relevance. That makes this move by Apple, without consulting the broader email community, that much more difficult to swallow.

The Privacy-Relevancy Paradox

The truth is that consumers want both privacy and relevant emails (and ads, too). In survey after survey for more than a decade, consumers have been very clear that they want both, which tells us something critical. Yes, subscribers want more privacy, but they don't want it at the cost of receiving irrelevant messages. Unfortunately, because the privacy changes by Apple were never tempered by any public discourse, consumers are guaranteed to get privacy at the expense of relevance.

Sadly, MPP users will most assuredly give Apple credit for improving their privacy, while many months after they enable MPP, they will blame brands for sending them messages too often and messages that are less relevant. The vast majority of MPP users will never connect those dots, because it will take time for the relevancy of marketers' emails to fade and because MPP's opt-in language doesn't acknowledge the tradeoff that's being made.

While that may be great for Apple's brand image, it will be one step forward and one step back in terms of the email experience. It didn't have to be this way.

With Great Power...

We know that at least one other major mailbox provider is considering depreciating email opens within the next couple of years, along with perhaps other changes. We hope that this and other mailbox providers engage with the ANA, email service providers, and the rest of the email marketing industry before making other sudden and fundamental changes to how the email channel operates.

Google's efforts to phase out third-party cookies provides a good model for how big tech can work effectively, transparently, and respectfully with the marketing and advertising industries. Consumers get increased privacy, while brands get ample time to adjust their business strategies and service providers get ample time to change their platforms and develop new ways to help brands deliver relevant ads — which consumers steadfastly say they want.

The momentum behind digital privacy is undeniable. But change is hard, and the best policy changes are arrived at through open, transparent, and collaborative processes. CASL, GDPR, and CCPA are proof of that. With big tech companies like Google and Apple increasingly wielding government-like powers to enact wide-scale policy changes, we hope that they'll also adopt government-like approaches to developing policy changes.

If you're a marketer struggling with what to do about Mail Privacy Protection, check out these slides that detail the impacts of MPP and how marketers can adapt.

The views and opinions expressed in Marketing Maestros are solely those of the contributor and do not necessarily reflect the official position of the ANA or imply endorsement from the ANA.