http://www.siliconvalley.com/mld/siliconvalley/6845129.htm

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

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.''

©
2003 Mercury News and wire service sources. All Rights Reserved.

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