Sep 26, 2003 (10:09 AM EDT)
California Anti-Spam Law Questioned

Read the Original Article at InformationWeek

SAN JOSE, Calif. (AP) -- A new state law that targets unsolicited bulk E-mails peddling everything from low mortgages to Viagra likely stands little chance of reducing the number of junk messages clogging Californians' E-mail boxes.

Even if the law, supposed to take effect Jan. 1, passes expected court challenges, it's still unlikely to stem the flow of spam, according to legal and E-mail experts.

"There are 36 states with active anti-spam legislation today, and the spam problem has not gone away," said Scott Petry, vice president of products and engineering at the spam-blocking company Postini Inc.

Gov. Gray Davis and the bill's sponsor, state Sen. Kevin Murray, portrayed the legislation as an ironclad weapon in the war on spam.

"There are no loopholes, no way of getting around it," proclaimed Murray, a Los Angeles Democrat. "We are confident that this is going to stop the billions that we are losing to spam."

Murray's legislation cites a Ferris Research study that says spam will cost U.S. organizations more than $10 billion this year in lost productivity and additional equipment, manpower and software. California's share is estimated at $1.2 billion.

The Golden State's law, signed by Davis this week, would let Internet providers, the state attorney general, and spam recipients sue advertisers and spam senders who use misleading information in an E-mail subject line, invalid reply addresses, or disguised paths of transmission. The limit for civil judgments against spammers is $1,000 per message or $1 million per incident.

Companies can send bulk messages only if recipients have given their permission, or if there's an existing business relationship. In that case, the law requires that consumers must be able to opt out of future messages.

"California is sending a clear message to Internet spammers: We will not allow you to litter the information superhighway with E-mail trash," the governor said.

But even though individuals could sue, experts say it would be a mistake for spam victims to count on a windfall to buy, say, overpriced California real estate.

The problem is that the Internet crosses state and national boundaries. Extradition from another state is unlikely in a civil case.

"If the spammer is offshore, how are we going to enforce that?" said Marten Nelson, director of business analysis and strategy at CipherTrust Inc., another anti-spam company. "Are we going to start chasing spammers around the world? I doubt it."

Besides, the average E-mail user isn't likely to have the resources to investigate. And the state attorney general probably has more important crimes to worry about.

"We could have thousands or hundreds of thousands of spam police trying to go after spammers," Nelson said. "The reality is that very few spammers will be caught and it will end with big lawsuit costs."

Some argue California's law is far from the nation's toughest. Virginia, for instance, recently enacted a law that includes prison sentences and asset forfeiture for spammers.

"We would much rather see other states pursue the Virginia course rather than the California course because we think criminal penalties-- that is laws with real teeth in them--are going to have the best effect as far as deterring spammers," said America Online spokesman Nicholas Graham.

Some question whether states should be battling spam at all.

"I don't believe they have the power," said Brad Templeton, chairman of the Electronic Frontier Foundation and an expert on E-mail issues. "Forget if you love or hate the law, it requires you to know in advance what state the person you are mailing is in, to learn the laws of that state ... and obey them."

Congress is considering anti-spam measures, though it's doubtful they'll be able to reach bulk E-mailers based outside the United States.

"Perhaps they'll petition the U.N.," Petry said.

A solution is likely to be a combination of laws, technological changes to the Internet, and enforcement of policies. In fact, the Anti-Spam Research Group, a part of the Internet Engineering Task Force, is studying possible technological changes.

And there's always the delete button.