SMS & Industry News – June 2020

As the SMS experts, it’s our duty to keep you up to date with the latest news and developments in our industry. In this month’s release, we will discuss the strictest consumer privacy law in U.S. history, Apple quietly changing the guidelines for marketing push notifications, T-Mobile’s new SMS rules on ecommerce shopping cart reminders, and Shopify setting a precedent by beating a big TCPA lawsuit.

CCPA Enforcement Begins July 1st

In the middle of a pandemic that has upended the global economy – causing surging demand for some products and devastating others – the last thing anyone wants to deal with is a new regulatory regime. However, the California Attorney General declined to delay the scheduled July 1, 2020 start of enforcement of the California Consumer Privacy Act of 2018 (CCPA), the most comprehensive privacy law in the United States. The CCPA grants California residents new privacy rights and regulates businesses that obtain or process the personal data of California residents. It also gives consumers a private right of action to sue a business for data breaches and grants new enforcement power to the California Attorney General. For many brands operating on a national scale, including via e-commerce, the CCPA’s reach is terrifyingly broad. The new regulations are estimated to impact 75% of California businesses. Online video conference companies Zoom and Houseparty have already been sued under the CCPA’s private right of action for alleged breaches of Personal Information of California residents.

Companies and businesses – even those not based in California – should take immediate steps to assess their privacy policies, marketing, e-commerce, and social media efforts. The CCPA will impact how companies market to and interact with consumers, and how companies use personal information for commercial transactions and marketing efforts, including loyalty programs.

In January, the CCPA went into effect but enforcement was delayed until California’s Attorney General Xavier Becerra finalized the underlying regulations, or July 1, 2020, whichever came first. With about a month to go, the regulations are still not final. Nevertheless, CA Attorney General Becerra has announced that his office will move forward with enforcement of the CCPA starting on July 1. Though some businesses had argued that a delay in enforcement would be appropriate because of the coronavirus pandemic, the Attorney General rejected that idea. Instead, in a recent press release, he asserted that the impact of the pandemic has made it more important than ever to focus on privacy rights given consumers increased “dependency on online connectivity.” With such dependency on online connectivity, it is more important than ever for Californians to know their privacy rights.

Apple Changes Guidelines for iOS Push Notifications

It was subtly noticed back in early March that Apple had changed its App Store guidelines to allow push notifications to be used for marketing and advertising. This is a reversal of a policy that prohibited notifications for being used for direct marketing purposes. The changes are as follows: 

“Push Notifications must not be required for the app to function, and should not be used to send sensitive personal or confidential information. Push Notifications should not be used for promotions or direct marketing purposes unless customers have explicitly opted in to receive them via consent language displayed in your app’s UI, and you provide a method in your app for a user to opt out from receiving such messages. Abuse of these services may result in revocation of your privileges.”

~ App Store Review Guidelines 4.5.4

If users are spammed, winbacks will be very hard. Consumers must already consent to push notifications. The App Store guidelines don’t say anything about a second opt-in for marketing messages or ads. Accordingly, publishers should thus be able to send direct marketing messages if users consent to notifications, without any specific ads-related opt-in.

The new guidelines also require app developers “provide a method in [the] app for a user to opt-out from receiving such messages.” (Apple’s settings allow users to block notifications for any app.) This creates something of a dilemma for mobile marketers. If ads and “informational” notifications are co-mingled, and a user opts-out because of too many or irrelevant ads, that will kill the publisher’s ability to send any notifications. According to multiple data sources, the general iPhone notifications opt-in rate is between 40% and roughly 45%.

Why We Care

Ads or marketing notifications could work well for retailers, for example, who could personalize promotional notifications when items go on sale — as with email marketing. It might also work for streaming and entertainment apps, to promote upcoming shows or other content that users have expressed interest in. It could work for real estate, jobs, restaurants, sports and a few other categories where the promotion is closely tied to the content of the app or business.

All About T-Mobile’s New Shopping Cart Reminder Policy

Effective May 1, 2020, T-Mobile has made significant policy updates for SMS cart abandonment notifications. All eCommerce businesses should note these changes are likely to be broadened and adopted by all major carriers. Most eCommerce shops and merchants use SMS cart abandonment to drive additional revenue. The new changes impact SMS marketing campaigns for abandoned carts and reminder notifications when items are in your cart. 

This new policy is in response to some businesses sending too many text messages to customers shopping. This aggressive text marketing has grown to be a big enough problem, the mobile carriers are swiftly reacting to protect their customers. And, rightfully so.

The good news is, SMS cart abandonment marketing is not being disallowed altogether. Below are the details of the new policy changes set forth by T-Mobile.

Requirements

• The eCommerce website call-to-action (CTA) must mention the message program includes shopping cart reminders (within the opt-in terms and conditions) 
• The shopping cart message program must incorporate double opt-in via text
• Double opt-in content must inform the user the message program includes shopping cart reminders
• Campaigns must be filed as an “Account Information” campaign, with a detailed description highlighting the message program will include shopping cart notifications

Privacy Policy Disclosures

• Privacy policies must explicitly state how information is captured by the eCommerce site to determine when a customer cart has been abandoned (e.g. website cookies, plugins, etc)
• Terms and conditions on the eCommerce website must reflect the new policy

Delivery and Content Restrictions

• Text reminders must be sent within a 48-hour period and limited to one alert per unique abandoned cart
• The abandoned cart notification must not result in the eCommerce site completing the transaction on behalf of the consumer
• Abandoned cart notification must not collect payment information or accept approval for purchase via a keyword confirmation from the consumer
• The consumer must complete the transaction by processing payment themselves via a direct URL link to the eCommerce website

E-commerce Company Shopify Beats TCPA Lawsuit Over Marketing Texts

On May 13th, a federal judge in Oakland, California granted Shopify’s motion to dismiss a proposed class action under a federal robocall law filed by a man who received two spam text messages after making a purchase on a website that uses the e-commerce company’s platform.

U.S. District Judge Haywood S. Gilliam on Wednesday dismissed the lawsuit, ruling the man’s complaint alleging the Canada-based company directly participates in unauthorized text marketing campaigns to consumers’ cellphones fails to plead sufficient facts to show Shopify sent or was directly involved with sending the texts. Even though the texts were triggered by activity in the Shopify platform, they are not liable for actual delivery of the text messages. This ruling will surely be used by other companies trying to protect themselves against potential privacy violations.