California Spam Wars Heat Up

California may still pass the nation's toughest antispam law, but what it will cover and who will be held accountable under its stiff penalties are up for grabs.

The tide recently shifted against a measure that the state Senate had passed by a 2-to-1 margin. Senate Bill 12, an early favorite for approval, would ban commercial e-mail without the recipient's prior permission and let consumers sue violators. The bill died in an Assembly committee, unable to muster the necessary seven votes, earlier in July.

Rather, favor has apparently shifted to Senate Bill 186, a competing antispam proposal that passed the same Assembly committee by a 13 to 0 tally the same day SB 12 failed. It had also passed the Senate by a 2-to-1 margin.

The author of SB 12 charges Microsoft with spearheading a movement to kill her bill. State Senator Debra Bowen (D-Redondo Beach) says the software vendor wants to instead boost the other measure, which she says is weaker.

Competing Efforts

Both proposals set an "opt-in" model that requires consumer permission for unsolicited e-mail, and both allow suits by the recipient, ISPs, and the state.

But the key difference of SB 186 is that it spares ISPs and other e-mail service providers from being legally liable for spam--an exemption missing from Bowen's bill. That's the part she believes drew the ire of Microsoft, which operates the world's second largest ISP (MSN) and leading free Web mail service (Hotmail).

Bowen notes that her measure, SB 12, was modeled after the national "Junk Fax Law," including the right to sue. It would let individuals sue for damages of $500 for each spam message they receive.

Both Microsoft and California State Senator Kevin Murray (D-Culver City), author of SB 186, hotly deny the accusations.

Murray notes that SB 186 permits judgments of up to $1000 per e-mail message or $1 million per incident, in addition to actual damages caused by spam.

SB 186 defines incident as a "single transmission...containing substantially similar content." So if a spammer dispatches 10,000 or 10 million herbal Viagra ads at once, the penalty is the same. Fines can be reduced to as little as $100 if a court finds an advertiser has procedures to prevent sending unsolicited ads but erred, Murray says.

Killed by Bill?

Still, Bowen blames her bill's failure on Microsoft.

"Microsoft made no secret of the fact that it opposed SB 12 and was an 'enthusiastic supporter' of the new amendments that went into SB 186, which isn't surprising since it basically wrote them," the senator says.

Murray acknowledges he received input from Microsoft as well as other ISPs and consumer groups.

Microsoft Associate General Counsel Ira Rubinstein calls Bowen's claims "preposterous," but says Microsoft offered some amendments, as did Yahoo and committee members.

Rubinstein says Microsoft favors SB 186 because it poses fewer burdens for prosecution, offers stronger exemptions for companies to send e-mail to current customers, and assesses higher penalties.

"We don't benefit from more spam," Rubinstein says. "It burdens our network and is the number one complaint from our customers."

Still Pushing

Bowen says she's not through fighting for her antispam measure and will likely resubmit SB 12 before the legislature adjourns on September 12. The committee has already granted reconsideration, but no additional vote is yet set.

She expects an uphill battle getting it past the same committee that rejected it.

"Once computer users and businesses who are sick of being bombarded by spam get a look at the Microsoft Protection Act, I have little doubt we'll have another discussion about the best way to truly ban spam," Bowen says.

Meanwhile, Murray's SB 186 is under consideration by the Assembly Appropriations Committee. It also needs approval of the entire Assembly before it can become law.