La-La Legislation

Some readers felt a column I wrote several months ago didn’t take a tough enough anti-spam stance. They barraged me with email branding me a “spam apologist.” Though I don’t feel I’m at all pro-spam, I’ve embraced the moniker. A sign proclaiming me Jupiter’s official Spam Apologist now hangs on my office wall.

What I’m about to say, then, should only further anger the easily angered anti-spam contingent: California’s anti-spam law, signed by Governor Gray Davis last week, is a ridiculous piece of legislation. It could only have come from a state where Gary Coleman is running for governor.

Well, not quite true. Even Gary Coleman could understand this law was written by legislators who apparently have no clue how direct marketing works.

In short, the law forbids companies from sending email messages to consumers who haven’t expressly requested them. The law outlines punishment for the company behind the product advertised, not just the company that sends the message. That’s very scary. Goodbye email acquisition.

Enforcement of this law will be limited to companies the state can actually track down. I assume California won’t waste its resources running around Taiwan looking for spammers. It will focus on legitimate U.S. companies conducting acquisition marketing.

Successful legislation won’t stop offensive email generated abroad. Only technology can fix this problem. Legislation can be an effective means to reduce the fraudulent and misleading ‘subject’ and ‘from’ lines that currently abound. The U.S. Senate’s CAN-SPAM Act is a good first step toward accomplishing this goal while at the same time overriding the patchwork of state laws that exist today.

Think I’m just apologizing for spammers? Read what Kevin Murray, the state senator who sponsored the California bill, said in the New York Times:

“If you go out and rent a list of email addresses, by definition you are not a legitimate business. You are the person we are trying to stop.”

You read that correctly. Go back and read it again. It’s that outrageous.

I believe if you create a law based on a knee-jerk reaction to public annoyance, ignorance of the facts and an utter lack of understanding of the subject matter, you’re not a legitimate legislator.

“This is a group of politicians trying to cash in on a popular issue and will create more confusion and problems than solutions,” the president of the Direct Marketing Association told the Times. The DMA is an organization not exactly respected for its position on spam, but it makes a good point about the impetus for the new law.

The Senator is simply looking out for his constituents’ best interests. At least, that’s what he told the “Wall Street Journal.”

“Our job is to protect California residents.”

Senator Murray forgot to add he also wants to protect Yahoo and Microsoft. Part of the law requires companies that have a pre-existing relationship with consumers to provide a toll-free telephone number or email unsubscribe mechanism to allow them to opt out of their mailings. Unless the company in question is a free email provider, such as Hotmail. Such companies are exempted from this requirement. The law reads:

This opt-out provision does not apply to recipients who are receiving free email service with regard to commercial email advertisements sent by the provider of the email service.

In other words, Hotmail can send you all the commercial email messages it wants. It doesn’t have to provide a way for you to opt out.

Protecting California residents, indeed.

I understand Hotmail and Yahoo provide a free service in return for the ability to market to customers. Yet, if the authors of this bill are so genuinely concerned with the welfare of Californians, why would they include the loophole?

Several organizations have reported about 20 percent of email flows through California. Since in many (if not most) cases a marketer has no way of knowing whether a recipient actually lives in California, the California law could become a standard across the country. Bad news if you’re a marketer in Iowa, where this legislation doesn’t exist.

This law will do little to stop p0rnography and deceptive offers that are the root of the spam problem. Consumers aren’t up in arms because of an offer from Columbia House to purchase 11 CDs for a penny. They’re up in arms because their teenage daughter received an offer “from” Colombia to visit a p0rnographic Web site — 11 times.

Broad, overreaching legislation allows legislators to say they’ve done something to stop the problem. Unfortunately, if this law succeeds, it will leave inboxes devoid of legitimate acquisition email but chock-full of offers for p0rn, get rich quick schemes and offers to split $37,500,000 with the daughter of the deposed dictator of Guinea-Bissau.

Well done, Senator Murray.