I was recently asked whether cold email is dead, and I struggled to give a quick and clear answer.
After considerable thought, I realized it's hard to answer because it's actually multiple questions rolled into one.
So, let's tease that question apart to get at the key issues, including legality and effectiveness.
Let's start with...
Is Cold Email Going to Become Illegal?
OK, so even this question is too broad because there's potentially considerable legal nuance here.
Let's break this aspect down further (while noting that I'm not a lawyer and I'm not dispensing legal advice).
Is sending human-written one-to-one cold emails going to become illegal?
In the US, it seems highly unlikely that individuals would ever lose the right to write and send commercial emails to other individuals on a one-to-one basis. However, it has been largely illegal in Canada since the enactment of CASL a decade ago, with just a few narrow exceptions.
Of course, that right doesn't protect you from the recipient's choosing to mark your email as spam even if you've only just sent them one email. It also doesn't protect you from other forms of reputational damage, such as social media shaming or bad word-of-mouth.
Is sending trackable human-written one-to-one cold emails going to become illegal?
That appears to already be illegal—at least in Arizona. Under the Arizona Telephone, Utility and Communication Service Records Act, numerous lawsuits have been filed against brands alleging that they used email tracking pixels to track the activity of Arizona residents without their consent and to obtain "communication service records," which the law prohibits.
One of those cases, Hartley v. Urban Outfitters, was just dismissed. However, the ruling contained some potentially serious ramifications for cold email senders. As reported by Mickey Chandler at Spamtacular, here's the key part of the ruling:
As a matter of law, the Court concludes that digital records reflecting merely the dates and times at which Plaintiff opened promotional emails she signed up to receive, and the length of time she spent reading them, are not sufficiently personal to support a concrete injury. Like a users' keystrokes and mouse clicks upon voluntarily visiting a retailers' website, these details are entitled to less privacy protection by virtue of Plaintiff's decision to opt into receiving and reading the emails.
That last part about being entitled to less privacy protection because they opted in to receive email is critical. The ruling upholds the idea that obtaining permission is a key differentiator in determining privacy protections. The subtext is that Arizona courts would likely view cold emails that include tracking pixels as a violation of state law.
Is sending human-written bulk cold emails going to become illegal?
As already noted, this has long been illegal in Canada because of CASL. It's also illegal in Europe because of GDPR, which requires brands to secure permission or have an existing business relationship before sending bulk commercial messages.
In the US, commercial email is still governed by the ancient and woefully outdated CAN-SPAM Act of 2003. Since Canada passed CASL, the US Congress has been considering whether to join other first-world nations in codifying permission-based email marketing, but it has failed to take action.
Today, the best chance for anti-spam provisions to pass would be as part of the American Privacy Rights Act. The APRA is destined to pass in the coming years as more states pass conflicting privacy laws, creating compliance hardships for regional and national companies.
Even if APRA doesn't include anti-spam provisions, it will likely curtail the selling of personal information, including email addresses, making cold email operations more difficult to scale and run.
Is sending AI-written one-to-one cold emails going to become illegal?
Laws governing artificial intelligence or AI-related amendments to existing laws are another way that cold email could be seriously affected.
For example, the EU's Artificial Intelligence Act or its GDPR could be amended so that using AI to automatically generate email copy makes that email considered "bulk" or "commercial," and therefore subject to GDPR's rules.
However, legal deterrents are just one impediment to using generative AI for cold emails, as economic and technological deterrents will also play a role.
Is Cold Email Becoming Less Effective?
Legal issues aside, brands will invest in cold email only if it's effective. And there are structural and cultural reasons to believe it will become increasingly less effective.
First, email deliverability rules are tightening up
The new joint Yahoo-Google deliverability requirements are evidence of the tightening of deliverability rules. They require two things that are troublesome for large senders of cold email:
- Fully authenticate their emails for identification purposes
- Keep their spam complaint rates under 0.1%
Cold emailing generates much higher complaint rates than that. So, to avoid trouble, most cold emailing operations use snowshoeing. That is a spammer tactic that involves spreading your cold email sends across several different IP addresses and domains to avoid being defined as a large sender. A different subdomain wouldn't be enough.
To protect its sender reputation, a brand would also need to avoid linking to its website in its cold emails, since link (domain) reputations and email reputations are connected. Of course, in the age of phishing, sending from and linking to different domains other than your primary domain causes trust issues with recipients, undermining cold email's core goal of establishing a relationship.
Microsoft is rumored to be considering adopting the deliverability requirements established by Yahoo and Google, which would make these rules much more impactful to B2B brands.
And second, generative AI (GenAI) is breaking down reciprocity
(And that's one of the many things that worry me about GenAI). That's the tendency of people not to want to "owe" other people. So, if someone takes the time to do something for you (even if you didn't ask them to), then you tend to feel inclined to "pay them back," provided their ask is equivalent.
The same principle holds true in cold email. If you can see pretty quickly that someone actually spent some effort writing you an email (or at least tailoring a scripted email), you're much more likely to reply, even if it's to say you're not interested.
Time and attention and honesty are among the most valuable things anyone in this world can give someone else. However, GenAI is starting to undermine the principle of reciprocity by raising doubts as to whether the sender actually spent much, if any, time and attention on a cold email, even if it looks tailored.
So... it's simply much easier to justify not taking the time to read or respond to cold emails when you're not sure the sender took any time to write it.
We've seen that kind of skepticism with other personalization efforts, most notably with personalizing subject lines with the recipient's name.
Way back when, personalizing a subject line made recipients more likely to open that email. But years of abusing that tactic—and failing to follow through on personalizing the body content of these emails—made recipients jaded. Today, personalizing a subject line hurts an email's performance as often as helping it. Using GenAI to write cold emails could similarly jade recipients.
Such faux authenticity (or fauxthenticity) is actually being lauded in AI commercials, like the Google + Team USA—Dear Sydney commercial that ran during the Olympics. It's positioned as "help," but over time it will undermine sincerity. And the backlash to that ad was swift and overwhelming.
For cold emails, the sincerity of which is already in question because they're from strangers, the trend of undermining reciprocity is worrisome.
So, Is Cold Email Dead?
In the US, cold emails written by a human and sent to one person will likely always be OK, but using scale-boosting tools like marketing platforms and generative AI to cold-email probably doesn't have a long-term future.
If you're doing cold emailing today, keep a close eye on legal developments in Arizona and elsewhere to ensure you're not exposing yourself to class action lawsuits and other penalties.
Also keep a close eye on the performance of your cold email efforts, being mindful to measure the negative impacts as well as the positive ones.
If you think your organization might be overreliant on cold emailing today, then consider this article your wake-up call to build out other acquisition and awareness-building channels, including advertising, partnerships, content marketing, social, and, of course, permission-based email marketing.
Editor's note: This article originally misstated that Canadian Anti-Spam Law, CASL, doesn't apply to one-to-one cold emails, but it in fact does. That error has been corrected as of 08/14/24, 11:41 AM ET.
More Resources on Cold Emails
How to Craft the Perfect Cold Email With ChatGPT
How to Write Cold Emails to Millennials and Get a Response
Three Creative Cold-Email Templates That Will Get Replies
