- The Washington Times - Tuesday, September 23, 2003

This article incorrectly reported the actions of lawyer David Kramer and his law firm, Wilson, Sonsini, Goodrich and Rosati. Mr. Kramer supports Californias new antispam law, but neither he nor the firm lobbied for it on behalf of clients.

Spam is now illegal in California.

Gov. Gray Davis yesterday signed a bill that prohibits anyone from sending unsolicited e-mail advertisements — spam — from California or to state residents.

The law also allows spam recipients and the state to sue for as much as $1,000 per message and up to $1 million per unsolicited advertising campaign.

The law is the first piece of state legislation that bans spam while also allowing for civil lawsuits against spammers. Spam now accounts for about half of all e-mail messages and costs businesses billions of dollars in services and lost productivity, according to industry groups.

The law, among the strongest in the nation, comes as Congress is considering federal antispam legislation.

“This is easily the toughest bill in the country,” said David Kramer, a lawyer with Wilson, Sonsini, Goodrich and Rosati, a Silicon Valley law firm that lobbied for the measure. “This is certain to have ramifications beyond California. I would hope it would have ramifications at the federal level, and I expect it will.”

A key provision in the law, Mr. Kramer and other antispam advocates said, is that it allows individuals to pursue spammers. A similar law in Delaware bans spam, but leaves the enforcement in the hands of the state attorney general. So far, Delaware has not pursued any spammers.

“A private right of action is the only way these days you’ll see meaningful enforcement,” said Ray Everett-Church, chief privacy officer for EPrivacy Group, a company that helps governments and businesses fight spam. “A state attorney general has rapists and murderers and kidnappers to go after. Spam is not very high on their list.”

Observers said the California spam law passed surprisingly quietly and quickly. A similar bill stalled in the state legislature in June in face of heavy opposition from marketing and software lobbyists.

“This bill had been sitting on the back burner for a while, and they managed to quickly gather support for it,” Mr. Everett-Church said. “When they brought it up for a vote, it went through very, very quickly.”

The law could face constitutional challenges from marketers. Observers said a provision making it illegal to send spam to California from outside the state could be struck down. They said marketers could successfully argue that it’s too difficult to know precisely where their messages end up once they are sent.

It is also not clear whether the California law would remain if federal legislation is also passed. Several bills under discussion in Congress would pre-empt state law.

Congressional staffers said, however, that the chances of a federal spam bill being passed this year are shrinking by the day.

The “Can-Spam Act” sponsored by Sen. Ron Wyden, Oregon Democrat, was approved by the Senate Commerce, Science and Transportation Committee in June, but has stalled owing to a lack of broad support.

Sen. Charles E. Schumer, New York Democrat, sponsored the “Spam Act” calling for a “Do Not Spam” registry similar to the Federal Trade Commission’s “Do Not Call” list. That bill stalled in the Senate after FTC Chairman Timothy Muris called it unenforceable.

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