• by Masha Geller , September 17, 2003

While the email industry was busy discussing the questionable merits of the 3 leading anti-spam bills currently in front of Congress, California slipped one by that is very likely to be signed by Gov. Gray Davis and have a drastic - to put it mildly - effect on legitimate email marketers.

Good news first. The bill (S.B. 186, authored by Sen. Kevin Murray, D-Los Angeles,) would negate the previous California law that calls for "ADV:" and "ADV:ADLT" tags in the subject lines of emails, which, as I've said before, don't do anybody any good. Additionally, the bill would prohibit email address harvesting, which is a definite plus, as well as require standard language about unsubscribe information and truthful subject lines. Also, the bill would let individuals and California's attorney general sue violators for $1,000 per email up to $1 million.

The bad news is that the bill would prohibit anyone emailing to or from California (that's just about everybody at one time or another) from collecting email addresses for the purposes of sending unsolicited commercial email, which the bill defines as email sent without the recipient's "direct consent to receive advertisements from the advertiser" and - this is where the problem is - email sent to recipients who don't have "a preexisting or current business relationship" with the advertiser. The bill defines a preexisting relationship as one where "the recipient has made an inquiry and has provided his or her email address, or has made an application, purchase or transaction, with or without consideration [money], regarding products or services offered by the advertisers."

Plainly put -- and a huge thanks to MindShare Design's Strategic and ISP Relations Manager Quinn Jalli, an attorney who put this in plain English for me -- this means goodbye list rentals, affiliate marketing programs and the like. "We should be looking to the sender to ensure the opt-in nature of the email, not the advertiser," he said.

If that's not enough, the bill states that no one may "initiate or advertise in an unsolicited commercial email."

"There are lots of problems with that," according to Jalli. "All this is going to do is discourage legitimate email marketing."

How did we let this one get as far as Gov. Davis' desk?