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Spam bills roil California lawmakers

As a key committee sends one spam bill to a vote of the California Assembly, leaving a second one to die, the author of the failed bill places the blame with Microsoft.

A key committee on Tuesday voted to send one spam bill to the floor of the California assembly and left a competing bill to die in what one senator called a victory for Microsoft.

The bills have wended their way through the California legislature as lawmakers nationwide come under increasing pressure to criminalize the sending of unsolicited commercial e-mail. Efforts to pass tough antispam laws abound at the state level, and the U.S. Congress is also considering a number of bills.

The assembly's Business and Professions Committee unanimously approved Senate Bill 186, sponsored by Sen. Kevin Murray, of Los Angeles, and killed Senate Bill 12, sponsored by Sen. Debra Bowen.

The competing bills, each of which passed the Senate by 2-1 margins, would revise Bowen's antispam bill of 1998, which mandated that unsolicited commercial e-mail be labeled as such in the subject line of the message. Bowen now acknowledges that approach failed.

While both bills would fine spammers, Bowen warned that late amendments to Murray's bill would force spam recipients to prove "actual damages," while hers would assign fines of $500 per unsolicited e-mail. Bowen's bill may be reconsidered by the committee in the next few weeks.

Murray's office said that the final version of his bill headed for the assembly would conform with the legislative summary that committee members read before their vote Tuesday. According to that summary, the bill lets plaintiffs "recover, in addition to actual damages, liquidated damages of $1,000 per unsolicited commercial e-mail, or $1,000,000 per incident, whichever is less."

A representative for Sen. Murray said SB 186 would be more effective than Bowen's bill because it targeted the vendors who hired spammers to send bulk e-mail on their behalf. Bowen countered that her bill targeted both vendors and spammers.

After watching her bill stall in committee Tuesday, Bowen went on the offensive against what she said was the real culprit in the bill's defeat: Microsoft.

"Trusting Microsoft to protect computer users from spam is like putting telemarketers in charge of the do-not-call list," Bowen said in a statement. "Microsoft uses a megaphone to tell everyone how much it hates spam at the same time it's working overtime to kill truly tough anti-spam laws. Why? Microsoft doesn't want to ban spam; it wants to decide what's 'legitimate' or 'acceptable' unsolicited commercial advertising so it can turn around and license those e-mail messages and charge those advertisers a fee to wheel their spam into your e-mail in-box without your permission."

A Microsoft spokesman said he thought Bowen was referring to language in Murray's bill that exempted Internet service providers such as Microsoft from prosecution for spam they delivered but did not originally send. He called her accusations "patently false."

"It is not our intent to try to use the protection we have as an ISP (Internet service provider) for not being held liable for passing messages through our system," Microsoft spokesman Sean Sundwall said. "In Murray's bill, ISPs are not shot for being the messenger. So what she's hinting at there is that now that we have that protection, it can pass through to us even if we send the spam. But that's not going to happen, and we will use every resource we have to make sure that is resolved in future iterations of the bill."

One legal expert who studies spam law said that section 230 of the federal Communications Decency Act would protect ISPs regardless of what state law said about ISPs' liability for delivering spam.

"It's true that SB186 makes ISPs immune if all they do is deliver the spam, but that too is probably unavoidable under federal law," David Sorkin, an associate professor of law at the John Marshall Law School, wrote in an e-mail exchange. "Anyway, it seems to me to make a good deal of sense. ISPs bear some responsibility, but they're not the source of the problem, and people can always switch ISPs if there are a few bad apples."

Sorkin applauded the repeal of California's existing spam statute, but voiced doubts on the value of state spam laws.

"If a law merely sets guidelines for spamming by requiring labels, prohibiting fraud, etc.--as is the case with existing California law (and most other places within the US)--all it accomplishes is to legitimize spam, making the spam problem worse. I generally would support legislation that prohibits unsolicited commercial e-mail (or preferably, unsolicited bulk e-mail), though I have serious doubts about trying to accomplish this at the state level."

A vote by the assembly on SB 186 could come as early as this month, but wrangling over California's budget crisis could derail its progress, Murray's office acknowledged.

Whatever the voting schedule, Bowen predicted choppy waters for Murray's bill once the content of the amendments becomes clear to California legislators.

"I believe you'll see opposition begin to come out when people see what went into this bill this morning," Bowen said in an interview Tuesday. "There are 15 amendments, and this spam story is not written yet."