California bill would bar spam, fine senders

By The Associated Press

12.09.02

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SACRAMENTO, Calif. — State Sen. Debra Bowen wants to eliminate one of life's not-so-little pains in the neck: the unsolicited, unwanted e-mail advertisements commonly called spam.

"People talk to me about spam all the time," she says. "They say, 'Do something about this. I can't give my kid an e-mail address because I don't have any idea what's going to come in there,' or 'My employees are spending more time deleting spam than reading their business e-mail.'"

Bowen, D-Marina del Rey, has responded with a bill that an industry official said would be the nation's toughest. It would bar unsolicited e-mail advertising and allow people who receive it to sue the senders for $500 per transmission. A judge could triple the penalty if he or she decided the violation was intentional.

Louis Mastria, director of public and international affairs for the Direct Marketing Association, said 10 states require e-mail ads to be labeled as advertisements and several states also require the ads to include information enabling recipients to cut off additional ads.

But he said he knows of no legislation as stringent as Bowen's proposal.

The measure would cover commercial e-mails that promote the leasing, selling, renting or "other disposition" of property, goods, services or credit.

Current California law includes a labeling and opt-out requirement for e-mail ads. But prosecutors usually have little time to deal with violations of the act, Bowen said, although state Attorney General Bill Lockyer recently sued a California company, PW Marketing, for allegedly violating the law.

"The ($500) fine's really intended to get a whole generation of computer-savvy folks to help us do the enforcement," Bowen says. "Getting rid of spam is never going to be the district attorney's first priority and it shouldn't be."

The current system might work with only a few spammers, Bowen says, but the industry is booming so much that "the amount of spam that's clogging the Internet is estimated to be a quarter to a third of the entire volume of Internet transmissions. I've seen estimates that it could grow to 50 percent in the next five years."

Under the current law, a consumer could cut off one source of e-mail ads only to be hit with spam from another direction because e-mail advertisers swap lists of e-mail addresses or sell them to each other, Bowen says.

Heather Palmer, a spokeswoman for Etracks, a Belmont, Calif., firm that operates an e-mail delivery system, said the use of e-mail advertising is growing because it works.

Mastria said Bowen's bill would hurt legitimate e-mailers while missing the rogue operators that cause most of the problems.

"You will filter out 100 percent of the legitimate marketers and get 100 percent pure, unadulterated spam in your mail box," he said.

Also, Mastria said, the bill could stifle new technologies and companies by making it difficult for them to reach potential customers through the Internet. "It inhibits the growth of whatever the next technology or commercial enterprise is."

Bowen says businesses could get permission to e-mail ads by asking for it from people who visit their Web sites, offices or stores.

The Direct Market Association favors federal legislation that would create a national consumer opt-out system like the one now in place in California.

"This is not a state issue," Mastria says. "At best it's a national issue. There has to be a channel for commerce here. Let's make it as easy as possible for both sides and let's prosecute the (fly-by-night) spammers."

Bowen agrees there should be a federal crackdown on spam. "But on behalf of Californians who are smothered in spam I'm not willing to wait that long," she said.

California laws often trigger national legislation.

Francisco Lobaco, California legislative director for the American Civil Liberties Union, says Bowen's bill raises First Amendment concerns and that a better approach would be to create a do-not-send list for spam haters similar to the state's planned do-not-call list for telemarketing foes.

"Commercial speech is conveying a message and it's subject to stricter regulation (than political speech), but it's still protected under Supreme Court rulings," Lobaco said.

That do-not-send list would be too hard to maintain, says Bowen, who called the issue a "First Amendment right to be left alone, which is what the right of privacy is all about." (The First Amendment does not include a right to be left alone or a right to privacy.)

The sender pays for most of the cost of junk mail, Bowen says. "But on the Internet the mailer pays almost none of the cost of actually processing and delivering messages.

"You don't have a First Amendment right to print out a piece of advertising on my printer using my computer. That's basically what spam does."

Related

States target unwanted e-mail
But many technology experts, direct marketers question effectiveness of anti-spam laws.  07.29.02

Lawmakers push anti-spam bills
But many direct marketers say they have a First Amendment right to make e-mail pitches.  07.22.02