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California Considers Spam Ban; Will More States Follow?

In what some see as the beginning of a waterfall, California state Assemblyman Gary Miller introduced a bill last week that would expand a law banning unsolicited faxes to include unsolicited commercial e-mail.

This makes California the 11th state to consider such legislation in the past year. And, with anti-spam legislation stalled in Congress, industry insiders say even more states may begin pressing the issue.

Some electronic marketers welcome state action. Steve Markowitz, CEO of Intellipost, San Francisco, said laws that ban unsolicited commercial e-mail but keep the door open for “invited” commercial e-mail “would further legitimize our business model and get rid of the junk.”

Intellipost’s BonusMail program rewards members points redeemable for products and services for each e-mail ad they read. Markowitz conceded that the global nature of the Internet makes state legislation not only difficult to enforce, but difficult to follow.

“If an e-mail address is [email protected], you have no way of knowing if it’s in [a state that bans commercial e-mail],” he said. But, Markowitz said, “states acting on unsolicited e-mail will likely provide the impetus for the federal government to finally drop its foot — and when that happens, we’ll all be better served.”

Deb Goldstein, president of hi-tech list management firm IDG List Services, Framingham, MA, said she sees a need for national legislation.

“I think state-by-state legislation is a mistake,” because definitions of terms like “unsolicited” will vary widely, she said. “My concern is that [Congress will go] totally past the point of what is necessary.”

So far, only Nevada has passed an e-mail bill. Nevada’s Senate Bill 13, which goes into effect July 1, will require unsolicited commercial e-mail messages to identify the sender and include opt-out instructions. A bill in Colorado that is aimed to regulate commercial e-mail and faxes passed in April, but provisions relating to e-mail were deleted before it was enacted.

California Assembly Bill 1629, the Internet Consumer Protection Act, would restrict unsolicited commercial e-mail unless there is a pre-existing relationship between the sender and the recipient.

The bill would allow unsolicited commercial e-mail recipients to collect civil damages equal to the amount of money lost because of the unsolicited e-mail or $500 per message, whichever is greater. The bill must sit for 30 days before it can be assigned to a policy committee and heard on the California state assembly floor.

John Cusey, a spokesman for Miller, said the bill was purposely designed to avoid sticky law enforcement issues surrounding the Internet.

“People who feel they’ve been harmed can [take action] on their own,” Cusey said. “[Miller] didn’t want to make an Internet police [force] and he didn’t want law enforcement involved.”

Rosalind Resnick, president of e-mail list development and management firm NetCreations, New York, said anti-spam legislation by individual states could spell trouble for all electronic marketers because even those careful to avoid spamming are regular targets for consumer backlash.

“People put themselves on lists and forget they did it. It’s going to be a real problem for companies like ours if we’ve got to hire lawyers to go to every state to defend ourselves,” said Resnick, who is a vocal opt-in e-mail list proponent.

John Lawlor, president of e-mail service bureau The Email Channel, Boca Raton, FL, said opt-in marketers have little to fear from state legislation allowing consumers to collect civil damages because spam recipients probably won’t make the effort to follow through in court.

“Writing a [complaint] letter to a congressman or a company is one thing,” he said, “but who is going to go to the trouble of hiring a lawyer and filing a suit?”

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