Posted on Tue, Sep. 23, 2003
Davis signs nation's toughest anti-spam bill
Measure Faces Challenges, Will Be Difficult To Enforce
By Aaron Davis
San Jose Mercury News
Gov. Gray Davis on Tuesday signed the toughest anti-spam law in the nation, declaring it illegal to send Californians unsolicited e-mail advertisements.
The measure raised hopes that the daily deluge of online pitches for herbal Viagra, car insurance and get-rich-quick schemes may soon become history.
Yet even anti-spam advocates and lawmakers cautioned that the law and its penalties will be tough to enforce since junk e-mailers often cloak their identities in mass mailings by using false return addresses, offshore computer servers and other tricks.
The law allows spam recipients to sue for damages of $1,000 per message and $1 million per marketing campaign. It also gives the state's attorney general as well as e-mail providers such as Microsoft and AOL broad new powers to pursue spammers.
State lawmakers and anti-spam advocates are betting that the top-to-bottom possibilities for enforcement will clean up online in-boxes.
"It turns basically everybody who hates spam into the enforcement authority," said Ray Everett-Church, chief privacy officer for the consulting firm ePrivacy Group. "Not everyone will go down to the courthouse, but you'll get enough of us old cranks who will that we can make it too financially dangerous for spammers to continue."
The law, authored by Sen. Kevin Murray, D-Los Angeles, targets not just the individuals or firms who operate spam servers, but also makes liable the often bigger and wealthier companies that are being advertised in spam. The legislation passed the state Assembly and the Senate two weeks ago. The law will take effect Jan. 1.
Anti-spam advocates say California's path-breaking law may help reshape the national debate.
"The only thing that would be better, would be a national anti-spam law that's equally tough," said Debra Bowen, D-Redondo Beach, who had drafted a similar bill in the state Legislature.
California's spam law faces a potential challenge this fall: Congress is currently debating five different versions of anti-spam legislation. Most are weaker than California's law and, if passed, would preempt enforcement here.
Critics also have threatened a court challenge to a provision in the state law that makes it illegal for people or companies outside California to send unsolicited commercial e-mail to California e-mail addresses.
Though there's little legal precedent to support the claim, advertisers say the provision violates interstate commerce rules.
Murray counters that the real power of the new law is the authority it gives the state's attorney general to go after spammers anywhere in the country -- or even offshore.
"We are confident this would stop the billions of dollars we are losing because of spam," Murray said Tuesday at a news conference in Sacramento. "There are no loopholes, no way of getting around it."
The California legislation is considered strong because it bars unsolicited commercial e-mail pitches unless a recipient has given explicit permission, or in other words "opts in." Most anti-spam proposals are weaker because they allow commercial pitches unless an individual takes the step of withdrawing permission, or "opts out."
The new state law, citing a study by San Francisco-based Ferris Research, claims that spam will cost U.S. organizations more than $10 billion this year from lost productivity and higher costs. According to the study, California organizations face $1.2 billion this year in spam-related costs. It is estimated that nearly half of all e-mail traffic is now spam.
Microsoft spokesman Sean Sundwall said the problem of spam driving consumers away from using e-mail prompted the software giant to support anti-spam legislation. Microsoft had opposed Bowen's earlier anti-spam proposal.
"We're pleased the state of California has taken on what we believe is a serious problem. We hope it fosters greater trust for e-mail users," Sundwall said.
The support of Microsoft and other e-mail service providers is crucial to the law's success, supporters say, because they are among the only ones with the technical resources needed to track down spammers. Microsoft in June filed 12 lawsuits against alleged spammers, based on a new Washington state anti-spam law.
The only legitimate e-mail advertisements allowed under the new law will be from companies who have existing relationships with customers.
For example, if a customer has signed up to receive an airline's weekly specials via e-mail, those arrangments are still valid. Also, if a consumer has purchased from a company, that business has the right to continue advertising to its customers. Consumers, however, can respond to those advertisements and request to be excluded from further mailings.
While tough on spam, California's law does not specifically target identity-theft and other e-mail scams that often seek to obtain personal financial information.
"Spam and scams aren't going to go away tomorrow because of the passage of this law," Everett-Church said. "This sets a clear bar, though, for what's legitimate e-mail business. Scams will have to be next."http://www.siliconvalley.com/mld/siliconvalley/6845129.htm