State Senator Debra Bowen, a Democrat, said late last week that a bill she authored, SB-12, had been approved by the California state Senate by 21 votes to 12, and will now pass to the California Assembly for a vote before, potentially, being signed into law.

Bowen told ComputerWire that the law passed despite lobbying from Microsoft Corp, AOL Time Warner Inc and the Direct Marketing Association, which, she said, tried to get SB-12 turned into a weaker opt-out bill before supporting it.

SB-12 repeals earlier legislation. It bans commercial email being sent to Californians unless: the recipient has expressly consented to receive the message, either in response to a clear and conspicuous request for the consent or at the recipient’s own initiative.

Any Californian who receives spam without such consent will be allowed to sue the sender for $500 per spam, and the judge can triple the fine if it is found that the spammer willfully and knowingly violated the law.

The law would give email users some of the strongest tools to fight spam available anywhere. But Bowen is concerned that business interests may persuade the US Congress to pass weaker federal laws that would preempt state law, including SB-12.

AOL thinks spam should be allowed to continue as long as they can charge the equivalent of a postage stamp for delivering it, Bowen told ComputerWire. When it comes to law, they’re with the spammers.

As one who comes from the ‘If it walks like a duck . . .’ school of thought, there’s no such thing as ‘legitimate spam.’ Bowen said in a statement. Spam is spam, it’s not free speech and it’s not legitimate advertising.

Federal legislators are considering long-delayed anti-spam laws, and earlier last week a Senate committee convened to hear testimony from ISPs, email marketers, privacy advocates, and anti-spam technologists.

A recurring theme from the hearing was that legislation should create ground rules for legitimate email marketers, focusing on giving ISPs the tools to sue people who use fraud to spam, and that federal law should preempt all state law on the matter.

Microsoft Corp chairman Bill Gates wrote: federal legislation should identify the basic components that industry guidelines must address, such as notice and choice obligations, but permit the industry to take the lead in developing the specific guidelines.

Symantec CEO John Thompson also said in a letter to the committee that uniform federal law should be adopted that avoids varying and conflicting state laws so spammers will not be able to move from state to state to avoid the legal consequences.

AOL Time Warner Inc’s vice chairman Ted Leonis told Senators federal law should help set baseline rules of the road for legitimate marketers who use the e-mail medium to reach consumers and target outlaw spammers who use fraud to spam.

Leonis did not explicitly address preemption. A major piece of federal legislation currently under consideration, the so-called CAN-SPAM Act, explicitly preempts state law, which has caused concern among consumer rights activists.

Mark Rotenberg, executive director of the Electronic Privacy Information Center, wrote in his testimony: A weak federal statute that preempts stronger state laws will reduce the level of consumer protection and facilitate the continued growth of spam.

Microsoft and AOL, along with Yahoo! Inc, are putting a public face on fighting spam, however, announcing an alliance in April that made several commitments to help prevent spam reaching consumers’ in-boxes.

These commitments focused primarily on preventing spammers using fraudulent or gray-area techniques – such as creating accounts under fake or stolen identities, falsifying email headers, and using open email relays.

The three firms also said they will work together with companies that communicate with consumers and businesses through e-mail to recommend technical approaches, policies and best practices to distinguish legitimate e-mail from spam.

If SB-12 is signed into law in California, Senator Bowen hopes that enough consumers will take it upon themselves to sue spammers to make an impact, as they have with the state’s junk fax laws, which are similarly structured.

It doesn’t take many judgments to stop spam being worthwhile, Bowen told ComputerWire. Changing the economics of it is what we’re trying to do.

Source: Computerwire