California Outlaws Spam

SAUL HANSELL, The New York Times, reports:

California is trying a deceptively simple approach to the problem of junk e-mail: It is about to ban spam.

Gov. Gray Davis of California signed a bill today that outlaws sending most commercial e-mail to or from the state that the recipient did not explicitly request. That is a far more wide-reaching law than any of the 35 other state laws meant to regulate spam or any of the proposed bills in Congress.

``We are saying that unsolicited e-mail cannot be sent and there are no loopholes,'' said Kevin Murray, the Democratic state senator from Los Angeles who sponsored the bill.

The law would fine spammers $1,000 for each unsolicited message sent up to $1 million for each campaign.

As the nation's most populous state and the home to many large Internet companies, the California bill could well have a significant effect on spam. The bill puts the burden on the sender to determine if the recipient resides in California.

The marketing industry vehemently opposes the law, saying that it will only restrict actions by legitimate marketers and not the rouges who send the most offensive spam.

The burden of complying with the state law, moreover, could well affect nearly all e-mail marketing.

``California represents up to 20 percent of the e-mail that is sent or received,'' said J. Trevor Hughes, the executive director, of the Network Advertising Initiative, a group of technology companies that send e-mail for marketers. ``Instead of trying to segregate the California e-mail addresses, many of our members are going to make the California standard the lowest common denominator.

Thirty-five states have already passed laws meant to regulate spam. But mostly these ban deceptive practices in commercial e-mail - like fake return addresses - and many require that spam be identified with the phrase ``ADV'' in the subject. But these laws do nothing to stop someone from sending advertising by e-mail, so long as it was properly labeled and not deceptive.

Delaware, also, banned sending unsolicited e-mail in 1999. But that law can only be enforced by the state attorney general, who has not taken any action under the statute.

Action under the California law, by contrast, can be brought by the state, by e-mail providers that have to handle spam and by the recipient. The bill's proponents say the right of individuals to file lawsuits should ensure that the bill is enforced, even if state prosecutors have other priorities. Indeed, a similar provision is credited with helping to insure compliance with the federal law against unsolicited faxes.

But at a news conference today, Kathleen Hamilton, the director of California Department of Consumer Affairs, promised that the state was ready to enforce the new law when it takes effect on Jan. 1.

``There will be a focus to make sure that once this law is in effect that advertisers abide by it so consumers and businesses are free from unsolicited spam,'' she said.

Copyright 2003 The New York Times Company