Calif. Enacts Tough Anti-Spam Law

Amid one of the biggest political crises in state history, California Gov. Gray Davis signed a bill this week designed to prohibit spam and penalizes advertisers and others who send unsolicited email messages hawking sexual hankers, prescriptions, and other products.

The new law, which takes effect Jan. 1, empowers California residents, the state attorney general and Internet providers to seek civil damages against spammers amounting to $1,000 per email 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. “There are no loopholes, no way of getting around it.”

The legislation, dubbed SB 186 in committee, builds on current California anti-spam laws that requires commercial email to carry “ADV” or “ADV:ADLT” in the subject line. The new law outlaws unwanted emails sent from or to someone in California or through a server in the state. It also prohibits the collecting of email addresses on the Internet in California for the purpose of advertising.

According to the language of the new law, customers would have to opt-in to any commercial email, meaning they specifically agree to receive it. Individuals will be able to receive email from companies they have done business with, but even those companies will be required to give customers the ability to opt-out of future solicitations.

Murray and other supporters said they hope the bill helps smaller businesses who rely on email for orders but are losing money due to screen clutter. A recent study by San Francisco-based marketing firm Ferris Research estimated that unwanted emails cost U.S. companies nearly $9 billion in lost productivity, consumption of communication bandwidth and drain of technical support.

“California is sending a clear message to Internet spammers,” Davis said in a statement that referred to the Ferris study. “We will not allow you to litter the information superhighway with email trash.”

Still, reactions to the legislation were mixed. At the popular Web site craigslist.org, founder Craig Newmark said the law will provide him with legal recourse against spammers who seek addresses on his site. At the Aberdeen Group in Boston, however, Kent Allen, research director for the Internet Advertising division, said the bill is too weak to wield any significant impact.

Allen explained that the legislation is problematic because it does not define spam explicitly, and does not provide a definition for what constitutes an “unsolicited” message. “Spam is a major annoyance, but legislation is not the answer,” he told internetnews.com. “Often, what you cannot define, you cannot defend against effectively.”

Still others said that while the bill is explicit enough, it will be difficult to stop unwanted mail without new technologies that can target the messages objectively. “This bill will create a lot of nusance for legitimate marketers and not reduce by one email the amount of spam,” Ken Hirschman, general counsel of email marketing firm Digital Impact told the San Francisco Chronicle. “It will lead to frivolous lawsuits against legitimate marketers.”

However the situation plays out, the new law is not the first piece of California legislation designed to fight unwanted electronic information. Last year, Davis signed what he called “Leave Us Alone” consumer protection legislation designed to put the kibosh on unsolicited faxes and cell phone text messages. Today, 35 other states have anti-spam measures on the books, and Congress is debating a number of spam bills this fall.