Stupid Legal Watch: CA Anti-Spam Bill Passes State Assembly

An anti-spam bill that would give individuals the right to sue over allegedly false and deceptive unsolicited e-mail has passed the California state assembly and will reportedly go to the governor’s desk sometime after the state’s budget is passed.

This bill will do nothing to put a dent in spam and poses a serious threat to law-abiding marketers. However, it looks like it’s about to become law.

Among other things, the bill, co-sponsored by Assemblyman Jared Huffman, would prohibit sending commercial e-mail containing a subject line “that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”

The bill, AB 2950, would allow Internet service providers, the state attorney general, a district attorney or city attorney, and individuals the right to sue alleged violators for $1,000 per message up to $1 million.

The threat to legitimate marketers lies in giving individuals the right to sue and the bill’s vague definition of misleading subject line.

The bill’s author, anti-spammer Dan Balsam, claims it takes aim at spammers who deliberately misspell words in subject lines to get by spam filters—p/e/n/i/s, for example.

That would be fine and dandy if we could count on individuals to interpret the law as Balsam intended. But we can’t.

What we can count on is a cottage industry of anti-spammers tying up the courts with frivolous lawsuits against legitimate marketers over trivial issues while the real problem spammers—you know, the ones who don’t include return address information in their messages so people can find and sue them—keep hijacking people’s computers and happily spamming away.

When Utah gave individuals the right to sue alleged spammers, Salt Lake attorneys Denver Snuffer and Jesse Riddle in 2003 filed more than 1,000 lawsuits against companies such as Verizon, eBay and Columbia House in a massive shakedown effort before the law was repealed.

We can expect a similar scenario to play out in California. Way to go.

I published a piece in this newsletter pointing out the stupidity of this law in April. You can read the piece here

It made Balsam very mad. You can read his response here.

Among other faulty arguments that failed to address the main point of my piece, Balsam said that since I don’t support his law that I “apparently support falsity and deception, bravo!”

Well, bravo to you, too, Dan, for offering a false choice. Just because I don’t support your baby doesn’t mean I support deceptive marketing.

He also implied that I claimed AB 2950 contains some things it doesn’t contain. “AB 2950 never said that spam with the words breasts, penis, etc. should be unlawful,” he wrote. “Get your facts right.”

Actually what I did was suggest satirically that we should outlaw more of the types of things spammers tend to put in their messages, such as putting the words “breasts” and “penis” in subject lines, so they would magically go away. Apparently, satire is lost on Balsam.

I was making the larger point that when we pass a law aimed at people who are already breaking a bunch of other laws, and when the new law contains elements that threaten law-abiding companies, the criminals tend to ignore the new law, while law-abiding firms get needlessly hurt. Balsam never addressed that argument.

He also wrote that Barracuda Networks’ estimate that 90% to 95% of e-mail on the Internet is spam is proof that “report spam” buttons don’t work. Well, Dan, the fact that the vast majority of spam doesn’t hit the average inbox is pretty strong evidence that they do work.

He also says on his Web site that he dared me to publish his response and I didn’t. I never received his “dare.” Dan apparently doesn’t understand that I really like arguing and would never fail to take him up on such a weenie challenge.