http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/09/24/SPAM.TMP

Spam-busting
bill comes with $1 million penalty

Toughest measure in nation against unwanted e-mails

Lynda Gledhill, Chronicle Sacramento Bureau

Wednesday, September 24, 2003

Sacramento -- Gov. Gray Davis signed a law Tuesday that
prohibits spam in California and penalizes advertisers and others who send unsolicited
e-mail messages hawking sexual enhancers, prescriptions and other products.

The bold experiment to fight the barrage of electronic junk mail enables
California residents, the state attorney general and Internet providers to seek
civil damages against spammers amounting to $1,000 per e-mail and $1 million
per incident.

"This is the toughest bill of its kind in the nation and will hopefully
be a model," said Sen. Kevin Murray, D-Los Angeles, who introduced the
bill.

Spam accounts for about 30 percent of all e-mail traffic in the United
States, Murray said. Industry experts predict that by the end of 2003, spam
will make up half of all e-mail traffic, according to legislative analysts.

"The time has come for unscrupulous spammers to stop feeding our e-mail
inboxes with a daily diet of unwanted e-mail," Davis said.

LAW TAKES EFFECT JAN. 1

The law, which takes effect Jan. 1, gains its strength from allowing
consumers to go after people or entities that advertise through spam -- not
only the sender of the e-mail, who can be a third party hired by the advertiser
and one that is difficult to track down, said Murray.

The law outlaws unwanted e-mails sent from or to someone in California or
through a server in the state. It also prohibits the collecting of e-mail
addresses on the Internet in California for the purpose of advertising.

Kathleen Hamilton, director of the state Office of Consumer Affairs, says
her office estimates unsolicited spam costs U.S. businesses $10 billion a year.

"This screen clutter keeps us from doing our work," she said.

E-mail spam differs from postal junk mail because it is the customer who
ends up paying for the unwanted message, Murray says. Consumers have to pay for
their Internet connection, and unwanted e-mail simply increases the time they
have to spend sorting through their mail.

Consumers would have to opt in to any commercial e-mail, meaning they
specifically agree to receive it.

Individuals will be able to receive e-mail from companies they have done
business with, but even those companies will have to give customers the ability
to opt out of future solicitations.

"We are confident this is going to stop the billions of dollars that we
are losing by virtue of spam," Murray said.

Murray's bill is virtually identical to a bill by Sen. Debra Bowen, D-Marina
Del Rey (Los Angeles County), that
had been killed in an Assembly committee. Murray's bill had been opposed by
some consumer groups until it was amended in the last weeks of the legislative
session to contain all the provisions of the Bowen bill.

BENEFIT TO SMALL BUSINESSES

The law is especially important to small businesses, Murray says, because
they rely on e-mail for orders and can miss real inquiries in all their spam.

But some believe the bill will do nothing to stop unwanted mail.

"This bill will create a lot of nuisance for legitimate marketers and
not reduce by one e-mail the amount of spam," said Ken Hirschman, general
counsel of Digital Impact, an e-mail marketing company.

He says a provision that allows anyone who receives an e-mail to take action
will lead to a lot of money for lawyers.

"This will lead to frivolous lawsuits against legitimate
marketers," he said.

Others, however, are looking forward to the day the law takes effect.

Craig Newmark, founder of the popular Web site www.craigslist.org, says he plans to use
the law.

"A lot of spammers go after our site looking for addresses," he
said. "I fight spammers almost every day and get a lot of them to
stop."

Consumer advocates say it is the right time for California
to move ahead on the issue, as several bills in Congress are pending that do
not have as strong protections.

"Now is the time to say to Congress -- adopt this approach," said
Gail Hillebrand, a senior attorney for Consumers
Union. "Across the country, consumers are saying, 'Leave us alone.' "

©2003 San Francisco
Chronicle