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(July 23, 2003) - The Do Not Call legislation may impact your business or recruiting practices. We're not lawyers. This is a heads-up, not legal advice.

The Do Not Call legislation creates a National Registry of numbers that have revoked permission for telemarketers to call them. Soliciting these phone numbers carries a fine of $11,000 per number. There are a variety of State Regulations which also go into effect in the near term. Some are harsher.

Telemarketing, in a variety of forms, is central to the way that recruiters acquire so-called passive candidates. While it is clear that business-to-business solicitations are not covered by the new legislation, it is far less clear whether a call to a candidate's home is reasonable. In other words, you can pretty safely call a candidate at work. Calling them at home may constitute telemarketing. Companies that tend to be conservative, legally, may want to make a detailed evaluation of whether or not a call at home constitutes "telemarketing".

Compounding the issue is the fact that permission from the person you are calling is not enough to override the Do Not Call prohibitions. Once a personal phone number is on the list, it must be removed before it is okay to call it. Again, permission is not enough. If you make a telemarketing call to a phone number on the list, you are liable for the $11,000 fine whether you have 'permission' or not.

The emerging legislation requires that companies keep and honor a local "Do Not Call" list. We'd have to guess that this does impact aggressive Recruiting shops that are pursuing passive candidates. The problems with coordinating these efforts are legend, particularly in distributed Recruiting shops. If someone asks that you do not call them, you had better have a way of letting the others on the team know.

It certainly seems that at least some customers will want quick access to the lists as a part of their recruiting software.

You'd have to bet that a cross reference service would need to become part of any new offering by Eliyon or similar cold-call prospecting services. You might even find that Monster, Hot Jobs and others need to cross-reference the do not call list as a basic part of their service.

This is a murky area and as we've said, we're not dispensing legal advice. We just want to point out that the entire sphere of privacy is changing rapidly in ways that are beginning to encroach on our traditional business practices.

The same principles apply to spam. Already, 98% of email is deleted before opening. (If someone is giving you different statistics, ask them if an appearance in the preview pane of Outlook constitutes 'being read'.) The legal cases are mounting and are clear that mailing lists have to be clearly opt-in to avoid being classed as spam. We'll see the evolution of "No Spam" lists in the pretty near future.

Why do Microsoft, Yahoo and AOL all support the various forms of anti-spam legislation? The easiest way to see it is as a barrier to competition. The big guys can all afford to have regularly updated versions of "no-spam" lists automated into their mailing processes. Until mass delivery of those databases, and the development of inexpensive tools for filtering lists, they get tremendous market advantage. And, that's before you consider the very grey area of sponsored mailings to their 'membership'. The process raises the cost of entry for new starts.

We think that it is pretty important. as liability protection, to ensure that any "Talent Community" work you are doing offer clear opportunities to opt out. Whether or not you consider your process to be spamming may well be irrelevant.

John Sumser