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California Senator Slams 'Can Spam'

California State Senator Debra Bowen (D-Redondo Beach) reacted angrily to a letter marketers sent to Congress yesterday in which they exhorted legislators to move quickly on Federal anti-spam legislation. "Advertisers love the congressional bills because they don't can spam, they legalize it," Bowen stated in a sharply-worded press release. Headed, "Spammers Take Aim at California Computer Users," the release rebutted the letter's claim that state anti-spam laws are a knee-jerk reaction to the junk e-mail problem.

"The Federal proposals stick a fork in the eye of every Californian whose [sic] had their fill of spam by making it tougher for them to go after advertisers and marketers who make a living by flooding people's e-mail boxes with ads they didn't ask for and don't want," wrote Bowen.

Nor did marketers rein in the emotions in the letter that provoked Bowen's wrath. The open letter to Congress was signed by the CEOs of the American Association of Advertising Agencies (AAAA), the Association of National Advertisers (ANA) and the Direct Marketing Association (DMA). "Congress, Pass National Anti-Spam Legislation NOW or E-commerce Will Be Crippled!," the headline bleats. If Congress doesnt take immediate action to over-ride state laws, the missive goes on to say, there will be, "a crisis that brings e-commerce to a screeching halt."

The marketers' letter makes some good points. "Large and small businesses will be socked with major legal bills as frivolous and wasteful lawsuits continue to soar," it says. Since the passage of Utah's Unsolicited Commercial and Sexually Explicit E-Mail Act in 2002, hundreds of class action suits have been filed, most notably against Sprint. In one case, according to Gregory Saylin, an attorney with Salt Lake City, Utah-based Fabian & Clendenin, the plaintiff allegedly signed up with a third-party e-mail marketing company but subsequently cancelled his subscription. Less than two days after the cancellation, the plaintiff received an already-queued e-mail from the defendant. In a paper written for the state Bar Association, Saylin said at least one other case is based on an e-mail received by the plaintiff while still subscribed to the opt-in service.

The Can Spam Act allows a marketer to send e-mail for 10 days after a user opts-out.

Other Utah lawsuits try to extend the scope of the state's legislation. Example include arguing pop-up ads on a publisher's site are also "unsolicited e-mail." Marketers warn reputable businesses will be unable to comply with inconsistent laws, and e-mail communication can't conform to state boundaries.

In an e-mail, Bowen said California's law contains a provision allowing courts to reduce penalties to zero if the person being sued can prove unsolicited ads were sent despite best efforts to prevent it from happening. "While I would have liked to see this kind of affirmative defense take place at the outset of the case -- rather than at the back end -- the court can still zero out any damages for people and businesses who are falsely accused," she said.

Terrified marketers say California's law could put innocent businesses and individuals on the wrong side of the law. A corporate headhunter tries to recruit an executive via e-mail? Spam! E-mail your ex-girlfriend begging her to go back with you? She can sue you for a cool million for marketing yourself!

Bowen pooh-poohs such objections. "This notion that someone is going to get sued for sending out a job offer or e-mailing a resume is ridiculous," she said. She points out the opt-in spam law is based on the Federal law, and regulations that ban junk faxes. "Those regulations have been around for more than a decade and no one who faxes a resume to apply for a job is being prosecuted as a junk faxer." California's new law defines "commercial e-mail advertisement" as an "electronic mail message initiated for the purpose of advertising or promoting the lease, sale, rental, gift offer, or other disposition of any property, goods, services, or extension of credit." Which appears to leave out those applying for jobs, or earnest pleas for forgiveness.

"Besides," Bowen said, "do you really think the Direct Marketing Association cares about whether someone can e-mail a resume to apply for a job? Of course not. They care about whether they can e-mail unsolicited ads to people without their permission. That's the DMA's mission in life. It's why DMA opposed the junk fax ban, why it opposed the Do-Not-Call list, and why it opposed California's opt-in spam law."

Bowen authored California's 1998 anti-spam law. This year, she introduced SB 12 to repeal California's opt-out statute and replace it with the nation's first opt-in law. It requires e-mail advertisers and marketers to obtain permission before sending them commercial advertisements. That bill, opposed by the DMA, Microsoft and America Online , was defeated in the Assembly, though most of its provisions were later put in SB 186, which is effective on January 1, 2004.

"If a marketer is sending unsolicited e-mail ads, then the marketer is a spammer, end of story," according to Bowen. "Marketers keep trying to sell Congress and everyone else on this notion that only 'scammers' who are sending unsolicited ads for get-rich-quick schemes and pornography can be spammers, but that definition doesn't stick. People don't care what's inside the 49 pieces of spam they're forced to wade through while sipping their coffee in the morning. They just want it to stop."

Stay tuned.