State Sen. Kevin Murray is apparently open to changes in the tough California anti-spam law he wrote. As currently worded, SB 186 threatens even permission-based third-party e-mail advertising, and not just within California's borders.
Scheduled to take effect Jan. 1, the law bans commercial e-mail sent to or from a California e-mail address unless the advertiser, not just the sender, has direct consent or a pre-existing business relationship with the recipient.
As a result, the law would seem to ban third-party e-mail list rental because by definition, even though the recipient may have given permission to the list owner, he or she would not have given any advertiser who rents the list direct consent.
After reading an article in DM News about the threat that e-mail advertisers believe his law poses, Murray contacted Michael Mayor, president of e-mail list management and development company NetCreations, to discuss possibly amending the law.
“I'm in touch with the senator, and I found him extremely receptive to discussing the industry,” Mayor said. “He reiterated many times that it was not his intention to put companies like NetCreations out of business.”
Mayor said he plans to fly to Sacramento with three other to-be-determined representatives of the permission-based e-mail marketing industry — a list owner, a broker and a major mailer — to discuss with Murray possible changes in his law.
“Those four people [the fourth being himself] represent the e-mail food chain,” Mayor said. “We applaud Senator Murray's law. It's the first really effective piece of spam legislation out there. It's just the wording we have a problem with because it excludes e-mail prospecting.”
NetCreations represents 40 million e-mail addresses from 500 sources. It claims that all the e-mail addresses in its files were gathered on a “double opt-in” basis. Double opt in means that to get on a NetCreations list, the e-mail address owner must supply his or her address and then respond to an e-mail verifying that it was him or her who supplied the address. Most e-mail list managers' policies are less strict.
However, Mayor said he is not pitching Murray on making double opt in the law in California. Mayor is also chairman of the trade group Interactive Advertising Bureau's e-mail committee, which represents e-mailers and vendors with less-strict permission policies.
Murray also reiterated to DM News that he does not want to kill permission-based e-mail marketing.
“My intention is not to prevent anybody who wants to receive e-mail advertisements [from having] the ability to receive them,” Murray said. “The rub ends up being, when you put this stuff into law, that there's got to be a dividing line between the good guys and the bad guys.” However, he added, “I'm not convinced that double opt in is a requirement. I haven't decided where to draw that line.”
Any changes in the law that would allow third-party e-mail list rental would need “very specific and very tight standards for the opt-in language so that when somebody does click a box or somebody does opt in, it is conspicuously and clearly apparent to them that they are going to get e-mail advertisements from a broad cross-section of people,” he said. “I don't want it to be a checkmark at the bottom of an installation screen after all of the boilerplate copyright language.”
Any amendment also would have to ensure that people who want to opt out can do so, Murray said.
“If we can figure out a way to statutorily codify those kinds of best practice standards, then I clearly have no problem with the list industry,” he said.
Murray said he likes the idea of the list owner sending e-mail on renters' behalves and requiring the e-mail to identify exactly where the recipient opted in.
He added that if he can agree on changes to California's law and can get a two-thirds vote, it could be crafted such that it takes effect as soon as Gov.-elect Arnold Schwarzenegger signs it, rather than Jan. 1, 2004.
If there is no legal challenge, Schwarzenegger will be sworn in no later than Nov. 16 to serve out the remaining three years of outgoing Gov. Gray Davis' term.