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California Bill seeks to stem spam (Is it time for one in Montana?)

Could California lead the nation into a spam-free future? Or at least one where appreciably fewer unwanted pitches for porn, anatomical enhancements and cheapo printer cartridges flood our electronic inboxes?

Henry Norr San Francisco Chronicle

Total elimination of spam, unfortunately, is inconceivable, no matter what anyone does, but a bill now starting to wend its way through the state Legislature could help stem the rising tide. And with frustration over the issue mounting — in the business community as well as among individual voters — the bill stands an excellent chance of passage, said its sponsor, state Sen.

Debra Bowen, D-Marina del Rey (Los Angeles County).

Bowen, prime mover behind last year’s successful effort to repeal the legal fig leaf that California junk-fax firms had been hiding behind, filed the new proposal, SB12, in December, on the first day of the current legislative session. It would replace the state’s current, largely ineffective spam- control law, which was also written by Bowen, in 1998.

Among other provisions, that law requires an "ADV:" at the beginning of the subject line of spam messages, plus a working toll-free number or e-mail address where recipients can get themselves removed from the sender’s mailing list.

The new bill would establish rules modeled on a tough federal law that bans junk faxes, which was enacted in 1991 and has been repeatedly upheld by the courts, except for one federal district judge in Missouri. (Thanks to Bowen’s efforts last year, there’s no longer any legal ambiguity: The federal fax rules apply in California.)

In essence, those rules establish an opt-in system for faxes, and SB12 would do the same for e-mail. It would become a misdemeanor to transmit unsolicited commercial e-mail advertisements within the state or to any California resident’s e-mail address.

The only exceptions would be when the recipient has given direct, unambiguous consent to receive such ads from the sender (i.e., opted in) or when there’s a "preexisting or current business relationship" between the sender and the recipient.

Defining such relationships is tricky. Bowen told me last week that it’s one of the sections of the current draft she is still working to improve. "I have no desire to harm any California business" making legitimate efforts to contact its customers, she said.

Another provision of the bill would make it illegal to sell or otherwise distribute lists of e-mail addresses to be used for transmitting spam from California or to addresses in the state.

PENALTIES AND ENFORCEMENT

The bill applies not only to those who transmit unsolicited commercial e- mail, but also to those who "cause (it) to be transmitted." According to Bowen’s staff, that means it would cover not only the actual spammers — the outfits that collect e-mail addresses and send spam to them — but also to businesses that pay such services to dispatch pitches for their products and services.

Even advertisers with no physical presence in California would be subject to the law. "Just having sales transactions in the state meets the minimum contacts standard" under California’s strong, long-arm statutes, according to a Bowen aide.

In short, the law would — in principle — apply to just about every spam operator and spam advertiser in the world except those based out of state that could somehow filter their mailing lists to exclude all Californians.

The trick would be enforcing the law. To do so, the state’s attorney general and district attorneys could bring civil suits on behalf of spammed citizens or even criminal complaints against violators.

As annoying as spam is, however, law-enforcement authorities have more serious things to worry about, especially these days, and chances are they wouldn’t make tracking spammers a top priority. Although Attorney General Bill Lockyer has made some efforts to enforce the state’s spam controls, history shows, as Bowen put it, that "having the AG or the DAs enforce (such laws) just doesn’t work."

That’s why she added what’s known as a private right to action in SB12: It authorizes recipients of e-mail sent in violation of the law to sue for actual damages or $500 per violation, whichever is greater, plus costs and attorney’s fees. If the court finds the violation willful or knowing — something that shouldn’t be hard to prove in cases involving serious spammers — it could increase the penalties up to threefold.

Will it be worth anyone’s while to go through the hassle any lawsuit inevitably entails? Not to me and perhaps not to you. But at $500 to $1,500 a pop, the incentives are surely substantial enough to motivate some victims of spam. At least for a while, for example, jobless dot-commers and their attorneys could make a good living tracking down spammers and hauling them and their customers into court.

Although individual consumers might have a hard time proving actual damages,

that provision could inspire suits by Internet service providers, large corporations and other organizations whose bandwidth and servers have been stretched to the breaking point by the sheer volume of spam sent their way.

A letter about the problem that AOL put on the welcome screen of each of its 35 million subscribers last week claimed that AOL blocks an average of 780 million spam e-mails per day. And as almost any subscriber can testify, many millions more get through.

The real point, according to Bowen, is that even a few successful suits would change the economics that have fueled the spam boom. "The response rates are so low," she said, "that it wouldn’t take a lot by way of fines or penalties to take the profit out" of spam.

Even if the law is enacted, some extra-sleazy spammers would no doubt continue their operations, assuming they could evade detection and litigation, and new ones would probably arise to replace any who threw in the towel. But at least there would probably be fewer of them, and they’d probably have a harder time finding customers.

In other words, SB12 won’t eliminate spam, but there’s reason to hope it could reduce the volume, just as the junk-fax ban has done. As Bowen said, "If you can slow down the torrent, everyone’s better off."

PROSPECTS FOR PASSAGE

Considering the depth of California’s fiscal woes, I figured legislators would have little time for worrying about spam. Not so, according to Bowen. The Senate’s Business and Professions Committee tentatively plans to hold a hearing on SB12 within the next few weeks — probably on March 10.

If it’s approved there, it will go on to the Appropriations Committee even though it should cost the state almost nothing. It could come to a vote on the Senate floor and then the Assembly within a few months, she said.

Even the bitter partisan split in Sacramento may not hurt the bill’s prospects. "I don’t believe it will be a partisan issue," Bowen said. "There’s a tremendous amount of support pouring in, both from individuals and from the business community," she said. "So far I’ve received only one message from someone who wants the right to receive spam" without having to opt in.

In fact, according to Bowen, other legislators have begun clamoring to be listed as co-authors of the bill. "They’re hearing from their constituents, or maybe they just can’t read their own e-mail anymore because of all the spam," she said.

Internet service providers and some businesses that use e-mail to stay in touch with customers are seeking refinements to some of the bill’s language, mainly to ensure they aren’t targeted unfairly, according to Bowen, but the only real opposition she anticipates is from the Direct Marketing Association, a powerful trade organization and lobbying group representing mail-order and online merchants.

In response to the rising furor over spam, that group recently abandoned its long-standing opposition to federal anti-spam legislation. It has promised to put its political muscle behind the idea, but it remains opposed to state regulations. On the federal level, it is seeking a law that would curb outright fraud and abuses such as the forging of mail headers, while giving "legitimate" direct marketers a green light to send all the spam they want until the recipients go to the trouble of requesting removal.

As Bowen put it, "From the (association’s) point of view, the only spammers are scammers."

I asked DMA spokesman Louis Mastria for his reaction. "I’m not sure what specifically we’ll do" about SB12, he said, "but we have questions about whether state-level regulation can work at all."

Besides, he said, the group believes that Bowen’s approach amounts to "trying to regulate legitimate marketers for the sins of illegitimate spammers.

That doesn’t help consumers. All it does is hurt people making a legitimate living."

Bowen doesn’t dispute the association’s contention that uniform federal regulations make more sense than a hodgepodge of conflicting state rules, and I don’t either. The problem is that we need relief now, and Congress hasn’t delivered.

Even if it does enact something later this year, odds are it’ll be watered down — as last year’s unsuccessful Can Spam Act was — so at best it will curb only particular abuses, rather than reducing the overall volume of spam.

"When I worked on the opt-out law in 1998, . . . everyone said ‘Wait for Congress to do it,’ " Bowen said. "Well, five years have passed, Congress hasn’t done a thing, and the spam problem is going from bad to worse. As Jimmy Stewart said in ‘It’s a Wonderful Life,’ ‘Wait? Wait for what?’ "

Under the circumstances, she said, "This is a good place to use the concept of states as the laboratories of democracy."

Although many other states have adopted limited spam controls, generally along the lines of current California law, none has so far adopted the opt-in approach Bowen supports.

"It’s as though we had a highway system designed for the horse and buggy, and someone came along and invented the automobile, but no one got around to installing stop signs and traffic lights and speed limits," she said. "We’re well beyond the point where the Internet is this freewheeling place that needs to be allowed to develop on its own. We have to have some mechanism to bring order to it."

If you agree, let your legislators know it. See the accompanying chart for information on how to reach them.
ANTI-SPAM BILL SB12 AT A GLANCE

— Makes it illegal to send unsolicited commercial e-mail from California or to California e-mail addresses, except when the recipient has given unambiguous consent to receive such advertisements or when there is a current business relationship between the sender and recipient.

— Applies both to spammers — the services that actually send out the e- mail ads — and to advertisers who use their services.

— State attorney general or district attorneys could file civil suits or criminal actions against violators.

— Recipients could bring suit for actual damages or $500 per spam message, whichever is greater, plus costs and attorney’s fees.

— Court could triple penalties when violations were willful or knowing.

Text of the draft bill: info.sen.ca.gov or http://www.leginfo.ca.gov

Next step: A hearing before Senate Business and Professions Committee is expected in early March.

How to contact legislators:

— ZIP code-based directory at http://www.assembly.ca.gov.

— Bowen can be reached by e-mail at [email protected] or by fax at (916) 323-6056.

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