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California Tries Spam Ban
Schlemphfer writes "Spammers have likely received their biggest setback yet, when California governor Gray Davis today signed a bill outlawing all unsolicited email sent to and from the state. Two things about this new law stand out: first, it puts the burden on senders to prove that they are sending solicited email. Second, it bans the entire practice of spamming, with no loopholes at all like allowing messages with ADV: in the subject. Keep in mind California has the world's fifth largest economy, and they are planning to enforce the law with fines amounting to $1000 per each piece of spam. This law could be ruinous to spammers when it takes effect January 1st."
The issue here is one of enforcement. What's to stop the dishonest from forging e-mail headers and the rest, to fine a company or individual out of existance?
There's a huge issue with the volume of spam potentially involved. In the case of "fraudulent spam", who's going to investigate it, since the burden is on the sender?
Not that I'm defending spammers, I think the law is a good idea, but if the execution is flawed, it could be short-lived.
"Adventure? Excitement? A Jedi craves not these things."
For purposes of spam, on January 1st my address will change to Redmond, California.
Someone you trust is one of us.
What has to be a resident in the state to get the benefits of this bill? The human, or the mail server?
Don't blame me, I voted for Kodos
Spammers generally sell product, if I buy a product from them (yeah I'll play dumb) and if the value of the product is less than the value of the damages I could receive, I still get good compensation for the effort :-)
...in bed
Governor Davis is planning a "Vote No To Recall" spam campaign.
...our penises, credit ratings, and mortgages are all in tip-top shape as is!
When the RIP Act was released in 2000 in the UK, it contained a lot of nasty legislation including some about encryption whereby the burden was placed on people to prove that they did not still have the key. This opened up the possibility of prosecution of innocent parties who could not prove their innocence (and were therefore guilty until proven innocent). While this law is notionally a good idea, does it not create the same problems of senders having to prove their mail was solicited or face being prosecuted? I am not advocating spam of course, just interested on the civil liberties side.
Now everyone will only have to deal with spam in ICQ, AIM, NewsGroups, MSN, Popup software, Spyware software, and Net Sends.
The Spam companies are going to be RUINED!
This bill would authorize the recipient of a commercial e-mail advertisement transmitted in violation of these prohibitions,... to recover liquidated damages of $1,000 per transmitted message up to $1,000,000 per incident..
:)
I won't get greedy and just take my chances in small claims
The burden will ALWAYS be on the recipient of unsolicited emails. When I login to my computer and find 90 ads for viagra and mother-son sex sites, it is on MY shoulders to inform authorities of the sender. Also, with all of the masking of addresses and such, how are they going to possibly prove who sent what to whom? A smart spammer will still get away with it.
On another note, how will the law apply to someone from another state visiting CA and checking their mail? What about a Californian visiting another state checking their mail? What about someone using an out of state ISP to check their mail?
One state banning spam is just going to create a paperwork nightmare. Call me when you have a real solution.
Celebrate Steak and a Blowjob Day!
I live in California. I got 1276 emails yesterday. One (1) was not spam. Wow, that would be $1,275,000 in penalties due to me alone, just yesterday!
That one, though, was from someone I've never heard of before, asking questions about things discussed on my website. Does that count as solicited or unsolicited?
California Moves to Ban Unsolicited E-Mail
By SAUL HANSELL
California is trying a deceptively simple approach to the problem of junk e-mail: It is about to ban spam.
Gov. Gray Davis of California signed a bill today that outlaws sending most commercial e-mail to or from the state that the recipient did not explicitly request. That is a far more wide-reaching law than any of the 35 other state laws meant to regulate spam or any of the proposed bills in Congress.
``We are saying that unsolicited e-mail cannot be sent and there are no loopholes,'' said Kevin Murray, the Democratic state senator from Los Angeles who sponsored the bill.
The law would fine spammers $1,000 for each unsolicited message sent up to $1 million for each campaign.
As the nation's most populous state and the home to many large Internet companies, the California bill could well have a significant effect on spam. The bill puts the burden on the sender to determine if the recipient resides in California.
The marketing industry vehemently opposes the law, saying that it will only restrict actions by legitimate marketers and not the rouges who send the most offensive spam.
The burden of complying with the state law, moreover, could well affect nearly all e-mail marketing.
``California represents up to 20 percent of the e-mail that is sent or received,'' said J. Trevor Hughes, the executive director, of the Network Advertising Initiative, a group of technology companies that send e-mail for marketers. ``Instead of trying to segregate the California e-mail addresses, many of our members are going to make the California standard the lowest common denominator.
Thirty-five states have already passed laws meant to regulate spam. But mostly these ban deceptive practices in commercial e-mail - like fake return addresses - and many require that spam be identified with the phrase ``ADV'' in the subject. But these laws do nothing to stop someone from sending advertising by e-mail, so long as it was properly labeled and not deceptive.
Delaware, also, banned sending unsolicited e-mail in 1999. But that law can only be enforced by the state attorney general, who has not taken any action under the statute.
Action under the California law, by contrast, can be brought by the state, by e-mail providers that have to handle spam and by the recipient. The bill's proponents say the right of individuals to file lawsuits should ensure that the bill is enforced, even if state prosecutors have other priorities. Indeed, a similar provision is credited with helping to insure compliance with the federal law against unsolicited faxes.
But at a news conference today, Kathleen Hamilton, the director of California Department of Consumer Affairs, promised that the state was ready to enforce the new law when it takes effect on Jan. 1.
``There will be a focus to make sure that once this law is in effect that advertisers abide by it so consumers and businesses are free from unsolicited spam,'' she said.
But he can't possibly compete against Marey Carey's not-so-different tactic of giving out free porn.
Turkeyphant
Just follow the money...
"Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit," wrote Chief Justice Warren Burger in a 1970 decision. "We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another." Chief Justice Burger, U.S. Supreme Court ROWAN v. U. S. POST OFFICE DEPT., 397 U.S. 728
I mention this simply because spammers will say they have a first amendment right to annoy you because a form of 'speech' is involved, which is bullshit, kinda like how I don't have a first amendment right to stand on your lawn yelling advertisements with a loudspeaker 24/7, even though speech is involved. The first amendment doesn't mean anything is legal so long as some form of speech is in the mix. Spam is illegitimate, unprotected speech--much like kiddie porn and threats of violence.
Stupid people make stupid things profitable.
"Step 3: Geeks Profit!" would have to be religiously adhered to, because I can think of few jobs more dull than sifting through possibly-faked message info. If I've been misinformed and a really well-faked e-mail is indistinguishable from the genuine article, or if the gov't suits refuse to pay geeks good money to waste time investigating this stuff, I can look into the future and see all kinds of poo-poo hitting the spinning blades.
The third choice, I guess, is to set up a Beowulf cluster of SCO-kerneled Linux boxen, give each spammer an original sig, and declare that forevermore all unsolicited e-mail shall originate from billgates@microsoft.com. I'd pay $699 to watch that unfold.
"Linux doesn't exist. Everyone knows Linux is an unlicensed version of Unix"- Kieren O'Shaughnessy
If I email an old classmate out of the blue, and they happen to live in CA, it could cost me $1000 if they're desperate for money?
I would be frustrated if my mental acuity was on your level too. If you think Gray bankrupted the State of California, why don't you mull these points over for a bit: 1) California has less money now, why? Because the REPUBLICANS CUT TAXES while the going was good; 2) Isn't it REPUBLICANS that are currently bankrupting the country too?
Dude. Get a clue.
This idiot governor...ruined our states economy
actually he didn't. the cali economy is ruined for one very specific reason: a few years ago, the electric industry tested how free enterprise would work in their industry. the test was done in cali. electric companies were allowed to charge whatever they wanted for power, and the result was disastrous. at one point, a company was charging $9999 for one unit of electricity (whatever a unit is) because they thought they only had 4 characters for the price (they actually had 7). in addition, some companies were falsely claiming plant failures and malfunctions so that other more expensive plants would pump out the energy at higher prices. this caused massive blackouts. since energy bills were so high, many people couldn't pay them, and had to live without power for long periods of time. others "protested" the prices, and refused to pay even though they had the money.
this has left california's electric industry in ruins. it is the cause of the massive deficit.
Washington State has an anti-spam law that forbids sending deceptive spam to state residents.
One judge tried to strike down the law, saying it created too high a burden on businesses to figure out whether an email address belonged to a Washingtonian.
The next judge up the appeals chain said in effect no, the law's just fine, the only "burden" is on companies who lie about their email address, unsubscribe policies and products, and while the law is supposed to facilitate legitimate commerce it doesn't have to cut slack for deception.
If judges in CA follow the same reasoning, the law may not survive challenges.
I have believed for some time there are only two ways the spam problem can be solved. 1. Ending the convention of accepting e-mail from unknown sources, that is, anyone not on a whitelist; and requiring authentication. 2. Legal means. The trouble with California's law is the jurisdictional issues it raises. Regulation of email traffic crossing state lines is arguably soley in the purview of the FCC, so aside from companies in California seeking to spam other Californians, I can't imagine the law will withstand a court challenge.
Good luck enforcing this law. Last week it was mandatory health insurance. According to a Long Beach Press-Telegram article, Boeing pays $1 million in worker's compensation insurance (not claims, just the insurance payment) per plane. Thats quite a few $45,000 jobs right out the window. I think tonight I am going to buy myself a 40, go down to Long Beach, sit on the sand and watch the jobs sail right out of the port. At least I'll be there to wave good-bye.
AHHHHHHHHH, sorry... just a frustrated californian here.
Don't just be frustrated. Vote the bastard out of office! and don't let his cronie Bustamante in either. That guy is full of crap too.
What I don't get is why Hispanics think the Democrats' crap is good for them. Yay, illegals get free education and drivers licenses. That means plenty of cheap labor, so there's no pressure on employers to raise workers' pay. That's bad for low income people...which many Hispanics are. And now these low income ILLEGAL people get to drive and go to college...to better themselves, ostensibly...and that puts them in a position to economically displace the low income legal people...
So why are Hispanics supporting Davis/Bustamante, when the two are really just out to screw over their constituency? All I can see about the Dems is that they tell people whatever they want to hear just to get the vote...then go spend spend spend on their little pet projects to "make the world a better place." Barf.
As for the republicans...either McClintock or Schwarzeneggar have to bow down to keep Bustamante out...I'd prefer it was Arnold to leave because McClintock's got a no bull attitude -- he won't tell you what you want to hear just to get your vote.
What a screwed up state. Excuse my rant.
So what if someone's computer is hacked (we hear about all kinds of Windows flaws) and used as relaying server for spam (without their knowledge), is the burden on innocent to prove that their computer was hacked or used as mail relay without their knowledge ?
This is from the law:
(b) "California electronic mail address" or "California e-mail address" means any of the following:
(1) An e-mail address furnished by an electronic mail service provider that sends bills for furnishing and maintaining that e-mail address to a mailing address in this state.
(2) An e-mail address ordinarily accessed from a computer located in this state.
(3) An e-mail address furnished to a resident of this state
I'd say that based on the intent of the law, the answer to that is "no", but it could be argued that point (2) does apply to your situation.
already say that there exists a direct marketer's right to send out notices ? While I applaud this it seems likely to #1 run into huge court challenges, #2 be VERY HARD to enforce, #3 seems to smack of grandstanding....
Otherwise MORE POWER TO HIM..I HATE SPAM...
errr....umm...*whooosh* *whoosh* Is this thing on ?
The number is based on it's GDP (Gross Domestic Product)
If California is counted seperately, The US still retains it's 1st ranking, but California takes 5th ahead of France.
I'm out of my mind right now, but feel free to leave a message.....
This was SB 186
For all you trolls blaming Davis for the actions of the legislature, you can read the actual vote record, and see how the final votes went.
For all you armchair leigslators making guessing about how they define spam, read the bill itself, as enrolled.
If this is written rationally, and the state really is prepared to do it, I'd vote against the recall just based on this law, if I lived in California. As it is, I'm thinking I need to move my mail server to California!
The word "Spam" has been codified into law, and is now an official part of the legal lexicon.
Hormel are likely to be annoyed, and the Pythons are probably shaking their heads in utter bewilderment.
Schwab
Editor, A1-AAA AmeriCaptions
1) Commercial speech is not a protected form of free speech as Nike just recently found out. Telemarkters are running into the same thing since the introduction of a national "Do Not Call" list here in then the states. I still generally can't stop someone from saying something (prior restraint) but now someone also can't force me to both listen to them and pay for the mechanism they use to transmit to me (i.e., my phone or my internet account). This issue was also addressed some time ago with regard to junk faxes. It costs the recipient and the sender cannot force the recipient to pay for something they don't want.
2) The California law would probably be difficult to enforce against unsolicited, non-commercial (e.g., political, religeous, charitable, etc.) e-mail for the same reason. These are generally protected speech. I would be very surprised if they didn't allow this loophole.
3) The concern about "guilty until proven innocent" is unfounded since this just says that the burden of proof that someone wanted to get a particular e-mail is on the sender. That is, whoever sends the spam has to have some sort of "opt in" record if someone challenges them. This is as opposed to each individual recipient being required to prove a negative: that they never requested the spam.
They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.
Ben
Simply amazing. The citizens want you gone, so you use your power to help pass laws that the citizen actually wants!
What's next?
Amnisty for p2p traders?
Caps on insurance hikes?
Regulation of energy to keep costs down?
Actually following the letter and intent of the weed decrimilization law?
As a Californian who isn't too fond of Davis, I have to snicker a bit. So the threat of being kicked out actually does make law makers push to enact laws that the average person wants, instead of pandering to corperations.
Gosh, the next thing you know, Davis will be the champion of providing a quality education.
The Internet is generally stupid
I hate spammers, but this law is meaningless, as are ALL anti-spam laws:
1. Spammers will ignore the law. Which leads to the next point:
2. Laws are meaningless unless enforced. How will it be enforced? When I get hit with spam that violates this law, who do I complain to? Who will investigate my complaint and then pursue and punish the spammers?
3. Where will all the money and resources come from to enforce this law (see point #2 above) -- to actually enforce this law will take FAR more money and resources than anyone realizes or will admit.
And even if significant money and resources are allocated to enforce the law:
4. What about all the spam originating from servers outside the U.S.
It would be relatively easy for a responsible company to prove that they didn't send the spam. At that point they could countersue Company A for damages and libel. All this talk about spoofing in email is really bullshit. You can't spoof everything. I've been fighting spam professionally for a good many years now. I archive and report tens of thousands of pieces of spam each year. It's not hard to find out where a piece of spam came from if you know where and what to look for.
I reside in arkansas, but my mailserver is located in california. Does this law apply to mail sent to me?
Not only free drivers licenses for illegals, with no background check -- but it's been made MORE difficult for *U.S. Citizens* coming from another state to get a drivers licence: CA DMV is now *enforcing* the requirement that you present an original birth certificate as proof of age. Which of course an illegal, born in some backwater province with no centralized record-keeping, won't have and won't need to produce to get a license.
~REZ~ #43301. Who'd fake being me anyway?
Also keep in mind that we in CA are upwards of $40 billion in the hole, and next year it will be even more. We have a compelling positive incentive to hunt spammers down, skin them alive, and take all their money.
To all the spammers of the world: Watch it fuckbrain, we're from California.
This law could be ruinous to spammers when it takes effect January 1st."
Ruinous to spammers. I love to savor those words. They tickle my tounge as the roll off it so smoothly. I want to say it over and over. Ruinous to spammers. Try it. Say it with me. "Ruinous to spammers". You like that, don't you.
-=-=-=-=- osjedi uses Debian GNU/Linux. -=-=-=-=-
On the other hand, California does have a lot of unemployed or underemployed computer experts (sorry, consultants in private practice who are available on short notice), many of whom have the spare time and skills to start hunting spammers. Most of them don't have the legal skills to negotiate these things through the courts efficiently - but there are also a lot of unemployed technology-oriented lawyers (sorry, lawyers in private practice or small firms who are available on short notice) who might be interested in some joint activities on spec. The lower end of this business is hunting down $1000 spams; the higher end is bounty-hunting for ISPs.
On the other hand, it does increase the opportunity for email about "You can make Thousands of Dollars in your Spare Time Hunting Down Spammers! Buy our Instruction Kit!"...
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
Courtesy the California Legislature web site.
It *is* a serious problem for email service providers, who do see a significant impact on their resource usage, but for the rest of us, most of the impact really is the annoyance and the time wasted on it.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
"I'll be damned if I'll trust my fate to 12 people who aren't even smart enought to get out of jury duty..."
Speaking as a former member of several juries, and as the foreman of one of those... Some of us are smart enough to get out of it if we want to, but realize that it's our civic duty.
The only reason we have the rights we have is that people just like us died to gain those rights. -- Cheerio Boy
We already have a number of laws on the books that can be used to take action against spammers:
How about we get the government to enforce some of the laws listed above instead of passing more? How's that for an innovative idea?
(d) "Direct consent" means that the recipient has expressly
consented to receive e-mail advertisements from the advertiser,
either in response to a clear and conspicuous request for the consent
or at the recipient's own initiative.
what's to stop a spam advertiser from spending a spam formatted to say:
We are asking for your concent to send you ads such as this:
It should not be legal to make money with somebody elses resources without their permission. It's that simple, folks.
To survive the courts, you want a definition that maximizes the damage of spam while minimizing any overlap between spam and free speech issues. This is why I like a definition of "bulk email from a stranger." Bulk is what fills inboxes and servers, bulk clogs up pipelines, bulk requires hijacked resources and stolen credit cards to send out. 'Stranger' = tens of millions of businesses = even 1 email per year from each of them would be too much to handle, let alone try to opt-out from. I think courts can see that the burden and damage from bulk email from strangers is extremely large.
In contrast, courts might not like a law that lets Bob sue Sue for sending a "Hi Bob, Fred said you're starting a Foo business. Do you need a consultant with 10 years Foo experience?" Certainly its unlikely that Bob would sue because of this commercial email from a stranger, but the law as written will allow it. As this particular message would be legal in other formats, the courts might not like banning it simply because it is email, absent any other damage. (And a related argument would apply to bulk emails from people/businesses to which you voluntarily gave an email address.)
Since you fight spam professionally, can you please tell me, when I report spam messages to abuse@wherever, does it actually do any good?
Then it's a matter of time that spammers will switch to the new channel - they will send me the spam through their partners. Guess who will be their new partners? That's right - my bank, my ISP, Yahoo and eBay. So, now what?
Less is more !
How many times is this same canard going to be recycled?
Spam is not, and has never been a freedom-of-speech issue. It is a property rights issue. A spammer's right to speak does not include a right to use my property for the purpose.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."