• by Larry Dobrow , November 19, 2003

Since the September passage of California's anti-spam law, most of the bleating about it has come from marketers and their reps - no surprise there, given that their email marketing efforts might have to be overhauled in order to comply with its rigid provisions. For the most part, California officials haven't had much to say about the uproar, noting simply that they did what their constituents demanded.

But when a joint letter from the Direct Marketing Association, the Association of National Advertisers, and the American Association of Advertising Agencies to the members of Congress was published last Thursday in Roll Call, California legislators quickly took to the media to address the situation. Not surprisingly, the legislators argued that the letter misrepresented the spirit of the California law as well as other state statutes enacted to combat spam. Less expected, however, was the vehement tone of some of the responses.

In response to questions posed by MediaDailyNews, California state Senator Debra Bowen (D-Redondo Beach) said via email that characterizations of the new law have been at best inaccurate and at worst deliberately misleading. Bowen has been at the forefront of the spam debate in California for several years. She authored the state's 1998 anti-spam law and introduced a bill earlier this year to toughen it up, although it was defeated in the state Assembly. Many of its provisions found their way into the law that was passed (S.B. 186, authored by Senator Kevin Murray, D-Los Angeles).

Bowen reserved much of her scorn for the DMA and what she views as its self-serving agenda. Asked about a comment made by DMA senior vice president, government affairs Jerry Cerasale at Bigfoot Interactive's PROfile Email Summit last week - he suggested that sending résumés to California-based companies would be illegal under the new law, as individuals would technically be advertising themselves - Bowen said that the DMA needed to read the law.

"This notion that someone is going to get sued for sending out a job offer or emailing a résumé is ridiculous," she said. "You know, we aren't exactly charting new ground here. The 'opt-in' spam law is based on the federal law and regulations that ban junk faxes and prevent companies from faxing unsolicited ads to people who haven't 'opted-in' to get them. Those regulations have been around for more than a decade, and no one who faxes a résumé to apply for a job is being prosecuted as a junk faxer.

"Besides, do you really think the Direct Marketing Association cares about whether someone can email a resume to apply for a job? Of course not," she continued. "They care about whether they can email unsolicited ads to people without their permission. That's the DMA's mission in life. It's why DMA opposed the junk-fax ban, why it opposed the do-not-call list and why it opposed California's 'opt-in' spam law. To say DMA's credibility on the issue is low and still dropping would be an understatement."

Bowen also scoffed at comments made at the Bigfoot conference by Internet Alliance state policy director Emily Hackett, who said that consented-to email newsletters that contain some ad content would violate the California law. "That's a bit of a red herring and it's pretty disingenuous of DMA and others to hold that out as the linchpin of their opposition," she said. "These marketers don't want to put an ad into a real newsletter, they want to send you an unsolicited ad and call it a newsletter. Should a car dealer who takes out an ad in a community newsletter that someone opts-in to get via email be sued for spamming? Of course not. Are marketers who decorate their unsolicited ads with a few lines of text and call it a 'newsletter' really just a spammer in disguise? Absolutely. The trick is to figure out a way to go after the latter, not the former."

She conceded that California's law "may be a little too tight" in this regard, but added, "I certainly prefer that to the gaping loopholes in the federal bills that give both newsletters with corporate logos and good old-fashioned spam a shining seal of approval."

As for the expectations of California consumers regarding the new law, Bowen doesn't think they consider it a "silver bullet" that will prevent every unsolicited commercial email from reaching their inboxes. "Most people can deal with a rain shower from time to time, but they're sick to death of the daily spam monsoons they have to weather," she said. "If the law helps turn the monsoons into an April shower or two, I think most computer users will probably be pretty happy." Regarding Hackett's crack that the best way for marketers to ensure they don't violate any of the law's provisions would be "don't send anything to California and see how they like it," Bowen responded, "I'll bet 99 percent of California's computer users and businesses... would stand up and applaud if marketers would follow that advice."

Bowen does agree with the DMA and other marketing groups on one pivotal issue: that a nationwide do-not-spam registry is a very, very bad idea. "Creating a national do-not-spam list is akin to creating an engraved invitation to hackers, because it would be the single best email marketing list in the country," she explained. "I can't imagine people feeling comfortable handing over the email address they really care about and saying, 'OK, here's my valid email address. Don't spam me!'"

Bowen also agrees that the eventual solution to the spam epidemic will involve some combination of legislation, technology and consumer action. "That's something I've emphasized through the whole legislative process here in California," she noted. "You need both technology and legal solutions to really make a dent in the volume of spam. One of my problems with filters, though, is philosophical. Why should I have to go buy a software filter to prevent someone from sending me unsolicited ads that I don't want to get?"

Bowen likened spam to junk faxing rather than telemarketing in that recipients pay to receive the ads. "With junk faxes, it's paper and toner. With spam, it's higher Internet access fees, slower service and email inbox capacity," she said. "You can't read or send email if your PC is tied up for 20 minutes receiving a load of spam, so your time and the money you've spent for Internet access is wasted.

"It's against the law for marketers to go around filling up people's voice mail boxes with sales pitches. The same ought to be true for email boxes."