New CA Anti-Spam Bill Introduced

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An anti-spam bill has been introduced in the California state Senate that would let recipients of unsolicited commercial e-mail sue the sender for $500 for each message received.

Sen. Debra Bowen, D-Redondo Beach, this week introduced SB 12, which would ban e-mail advertising unless there is a preexisting business relationship between the sender and recipient or unless the recipient has agreed to receive the e-mail ad.

The first question, of course, is how to define a preexisting business relationship. Marketers have been known to define it loosely. For example, the Direct Marketing Association's Association for Interactive Marketing claims in its guidelines on appending published in May that "[a] previous business relationship may be established through prior correspondence initiated by the individual, requests for information, responses to questionnaires or surveys, responses to sweepstakes or contests, or proven offline contact."

Bowen's bill defines a preexisting or current business relationship as meaning either: "(1) The recipient has purchased or leased property, goods, or services from the sender and both of the following conditions are met: (A) The subject of the commercial e-mail advertisement concerns that purchase or lease. (B) The commercial e-mail advertisement is sent within 12 months of the purchase or lease or within any longer express warranty period. (2) The recipient has an ongoing contract with the sender and the commercial e-mail advertisement directly concerns the ongoing contract."

According to a statement from Bowen, SB 12 is modeled after federal law banning unsolicited commercial faxes.

"Advertisers can't use your fax paper and toner to send you sales pitches, and they shouldn't be allowed to tie up your bandwidth, computer processing capacity and hard-drive space to e-mail you ads you didn't ask for and don't want," Bowen said.

The law would let any Californian who receives spam sue the sender for $500 and let the judge triple the fine if he or she finds that the sender knowingly violated the ban.

Currently in California, only a city attorney, district attorney, the state attorney general and ISPs can pursue spammers in court. The bill expands Bowen's 1998 spam law requiring senders of unsolicited commercial e-mail to place an "ADV:" or "ADV:ADLT" label in the subject lines and valid return addresses or toll-free number in body copy.

SB 12 will be assigned to a policy committee when the California legislature reconvenes in January.


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