Separating Facts From Politics In Senator Bowen's Remarks

by Bennet Kelley, Nov 21, 2003, 12:00 AM

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I am writing in response to Senator Bowen's recent diatribe "blasting" marketers for their support of the CAN-Spam Act pending in Congress and opposition to the California Spam law authored by Senator Murray. In recommending the California bill as a national model, however, Senator Bowen fails to acknowledge that Senator Murray has conceded that the bill is flawed and may need to be amended to address legitimate industry concerns. While Senator Bowen appears to have nothing but scorn for advertisers, Senator Murray has engaged in a reasoned dialogue with the industry on how to clarify the bill to protect legitimate permission based marketing.

Senator Bowen also mischaracterizes the California law by failing to state that the California law (i) is much more restrictive than the junk fax bill she compares it to; (ii) has a nationwide reach in violation of the Commerce Clause of the Constitution; (iii) has vague definitions which could be interpreted to "put a bounty on the head" of both spammers and legitimate marketers that do not engage in Spam and thereby inflict serious damage on ecommerce in California; (iv) handicaps California marketers' ability to compete since the law applies to emails sent to any of the 50 states and subjects California marketers to liability even if such an email is consistent with the recipient's state law; and (v) may lead to marketing companies closing California operations and/or relocating to other states which would have a significant impact on the recovering Californian economy.

In her interview, Senator Bowen dismisses the DMA's claim that sending a resume could be illegal under the California law as ridiculous since no one would sue for such a thing, but this does not negate the fact that the law "ridiculously" creates such a right of action. She also dismisses Emily Hackett's warning not to market in California as something that "99 percent California's computer users and businesses... would stand up and applaud," but I am sure that "99 percent" does not include the computer users that will lose their jobs, the businesses that moved to Nevada, the companies that service marketers and ecommerce companies that will lose substantial income, the taxpayers of California who need to make up for the tax revenue lost or the consumers who will be shut off from e-commerce because of this law.

The Senator's approach is the regulatory equivalent of "we had to kill the village to save it." While she questions "what part of 'no' do these ad guys not understand", I would ask her "what part of 'do no harm' does she not understand." The CAN-Spam Act is not perfect but it is a good first step as it establishes a single uniform standard which does not harm legitimate businesses.

Bennet Kelley is Vice President of Legal & Strategic Affairs for Hi-Speed Media, Inc., an interactive marketing company in Los Angeles. Kelley testified against the Bowen Spam bill during the Senate Business & Professions Committee hearing earlier this year.

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