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Bill lets ISPs throw book at spam

Amended legislation in California gives Internet service providers a new weapon against unwanted junk email.

Don't get mad at spammers--take them to court.

That's the theory behind amended legislation being pushed today in California to give Internet service providers a new weapon against unwanted junk email that they say clogs up networks and angers customers.

State Assembly members Gary Miller (R-Diamond Bar) and Jim Cunneen (R-San Jose) have reworked AB 1629 to give ISPs stronger legal recourse against spammers that trespass on their networks or send spam to customers within the state.

Miller's original proposal sought to ban companies from sending unsolicited commercial email to any Californian, which would have national implications because the Golden State has so many Internet users.

Under the revised legislation, ISPs must post an "unsolicited commercial email" policy on their sites and within their terms of service agreements. If spammers ignore warnings prohibiting spam, they can be hauled into court and fined $50 per email, up to $15,000 for 300 messages, or more. The law doesn't apply to bulk emailers that have existing business relationships with recipients.

"America Online has been very creative in suing spammers, but it is often on shaky ground legally," John Cusey, a legislative aide to Miller, said today.

AOL has successfully sued spammers that send junk email to its members. But it has based the lawsuits on the fact that many spammers use fraudulent headers to disguise the origins of their email, a practice which could be considered an unfair business practice and therefore illegal. It also has used precedents that it and other ISPs have set in suing spammers for trespassing on their systems. While that generally has worked, there is no specific law prohibiting people from sending undisguised email to networks.

"This makes it legal for ISPs to filter out spam, and they can use the civil penalties to protect their system if someone doesn't comply," Cusey added.

A lawyer who represented AOL in some of its zealous cases against spammers helped draft the bill, according to Cusey.

Taking spammers to court has been one part of a several-pronged strategy to curtail junk email. For instance, AOL is pushing for legislation that would make suits unnecessary.

However, the bill doesn't actually outlaw spam. It gives ISPs the power to go after spammers if they chose to do so. The bill also allows providers to cut deals with bulk emailers that they want to permit on their networks.

"If [spammers] want to negotiate with an ISP or AOL to send advertising and reimburse them for the cost to bare that spam, they can," Cusey said. "But the ISP has to consider that their customers will go elsewhere if they allow that. We're trying to make it as market-based as possible."

The lawsuit remedy plays to the marketplace as well. Lawmakers wanted to avoid setting up a state agency to which consumers and ISPs could complain about spam.

But the bill has gained support from the Coalition Against Unsolicited Commercial Email. "We would like to stay away from a Net police agency," Cusey added. "We'd like to see a federal solution to this problem, but maybe all the ISPS would cram into California."

The Federal Trade Commission also is cracking down on spam. Last week, the agency filed a complaint in a federal district court to "permanently prohibit the seller of an alleged bogus business opportunity from spamming the Net with his scheme," the FTC stated.

Congress is considering federal legislation now. The Netizens Protection Act, introduced by Rep. Chris Smith (R-New Jersey) would update the junk fax law to bar unsolicited email. The Unsolicited Commercial Electronic Mail Choice Act would require senders to label email messages as advertisements, and the Electronic Mailbox Protection Act prohibits sending unsolicited email from fictitious email addresses or without an accurate address for replies.

Miller's bill also would allow ISPs to filter out spammers that use false return addresses, which bounce messages back and tie up networks.

"We can avoid the Pandora's box of government designing the rules and procedures for unsolicited commercial email advertisements. That's a road we need not go down," Cunneen said in a statement.