New CA Spam Law - SFGate.com

http://sfgate.com/cgi-bin/article.cgi?f=3D/c/a/2003/09/24/SPAM.TMP

Spam-busting bill comes with $1 million penalty
Toughest measure in nation against unwanted e-ma= ils

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 hopef= ully 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 advert= iser 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 y= ear.

"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 th= ey 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 abi= lity to opt out of future solicitations.

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

Murray's bill is virtually identical to a bill by Sen. Debra Bowen, D-Ma= rina 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 legislat= ive 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 spa= m.

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

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

He says a provision that allows anyone who receives an e-mail to take ac= tion 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 si= te www.craigslist.org, says he plans t= o 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 Cali= fornia to move ahead on the issue, as several bills in Congress are pending that d= o not have as strong protections.

"Now is the time to say to Congress -- adopt this approach," s= aid Gail Hillebrand, a senior attorney for Consumers Union. "Across the country, consumers are saying, 'Leave us alone.' &q= uot;