January 22, 2004 3:05 PM PST

California 'disempowered' by federal spam law

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Californians will have less protection against spammers under a new federal antispam law that recently superceded a stricter state law, state Attorney General Bill Lockyer said Thursday.

California's law was set to go into effect Jan. 1 but was pre-empted by the newly enacted federal Can-Spam Act, short for Controlling the Assault of Non-Solicited Pornography and Marketing Act. The state law would have given citizens the right to bring private action against junk e-mailers. It was also one of the country's first opt-in laws, giving people protection from unsolicited e-mail by requiring marketers to gain permissions before sending commercial e-mail. That provision is moot with the federal law.

"Thirty-four million people were disempowered by the enactment of that act and left only the small resources of my office," Lockyer, a Democrat, told a group of attorneys and antispam executives at the "Spam and the Law" conference in San Francisco on Thursday morning.

"It is ironic, with an antigovernment federal government that tells us they trust us and want us to take our own action, that the only thing they did was give the government the right to take action," against spammers, Lockyer said of the Republican administration.

The group convened 21 days after the nation's first federal antispam law was enacted to discuss the law's effect on the industry. In a morning keynote address, Stanford University Law School professor Lawrence Lessig called the Can-Spam Act a milestone in the industry's 8-year fight against spam but also a "total failure."

Lockyer and Lessig both said the influence of special interests weakened antispam laws. Once the Direct Marketing Association awoke to California's new enforcement powers with an opt-in law and 37 other state laws, it likely affected a change in the political mood for a federal law that could overpower it, Lockyer said. Until politicians are unguided by business interests and can create regulations in the interests of consumers, the climate likely won't change, they said.

"Because we have let the problem grow for the last eight years, we have built an industry around the opportunity for spam to propagate," Lessig said.

Lessig suggested a potential technology solution for "consensual communication" that could help adversely affect the market opportunity for spammers, who are ceaselessly propelled by the money to be made.

That solution, proposed by Sens. Lofgren and Corzine, requires that commercial e-mail be labeled in its headers, such as "ADV," and that private individuals could be paid bounties for identifying marketers who break the law. In simplest terms, the labels would allow companies, individuals and Internet service providers to filter spam easily and eventually force marketers to devise ways to entice people to receive their messages, for example, by sending consumers micropayments for their attention.

In addition, the bounties would act as a potential deterrent to spammers' activities, because junk e-mailers would have thousands of vigilante Internet activists out to get them, as opposed to just state attorneys general or the Federal Trade Commission--all overtaxed agencies--on their backs, Lessig said.

Case in point: there are resource issues in the state attorney general's office. Only a "modest number" of his 1,100 attorneys are devoted to signaling out the highest-profile cases to prosecute, he said. Lockyer said his office's budget has been cut 22 percent in the past four years and that it will need an infusion from the legislature to devote more staff to the problem.

Lockyer said his impression is that nothing much has changed in solving the spam quagmire since the enactment of the federal law, and the audience agreed by saying marketers aren't complying with its provisions.

Lockyer said that although his office was looking forward to vigorously prosecuting spammers under the state law, it is still ready to act under the federal law. His office estimates that it costs California businesses $1.5 billion annually to clean up spam files.

Michael Goodman, an attorney for the FTC, said there is a piece of the Can-Spam that requires the FTC to study the course of implementing a system of bounties, for which a report is due by September. In addition, the agency is charged with studying the enforceability of labels, with a deadline of June 2005. Similarly, it has six months to report to Congress on the enforceability of a "do not e-mail" registry, which was proposed by the act.

"The approach by Congress here, by giving us the chance to study these approaches, goes to show that it recognizes the challenges of each," Goodman said in an interview.

For example, the premise of a bounty solution gives people a private right of action to seek out spammers. But, Goodman said, it's difficult to find spammers, and individuals would be operating without the subpoena power of the FTC. Indeed, Lockyear said that in typical cases, it takes as many as 20 subpoenas to track down the identity of a spammer and bring the culprit to court.

"We need your assistance to identify spammers," Lockyer said. "And at some point, we hope the culture will change. I hope there will be some self-restraint."

 

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