California Anti-Spammers Push Misguided Anti-Spam Bill
A SF Gate article notes a new state anti-spam law in the works in California. Actually, the article reads more like a press release for danhatesspam.com (run by Dan Balsam, who as described in the article is "prosecuting half a dozen cases against spammers in state Superior Court and has won 28 cases in small claims court. . . .").
The articles notes that a bill to strengthen California's existing anti-spam law is making the rounds in the legislature, and could end up on the governator's desk this fall.
What are some things we can expect from the bill?
Balsam said,
spammers should be barred from deliberately misspelling words in the
subject lines of e-mails and registering for hundreds or thousands of
domain names to send e-mails that evade spam filters.
A misspelling in a subject line is cause for a violation? The law seems fairly misguided, and could just end up resulting in the needless expenditure of taxpayer money in defense of it. Thus far, a few notable exceptions notwithstanding, anti-spam laws have steered clear of First Amendment issues. This proposed law is another story. (The article doesn't talk about specifics, but some of the suggestions floated definitely could run into some problems. And the suggestions seem fairly difficult to enforce practically as well.)
Another quote from the story puts things into context:
Federal law has been ineffective
at stopping spammers, Balsam said, in part because it prohibits
individuals from suing the spammers in federal court.
Federal law was intended to create a cause of action for providers of internet access services. Ordinary affected consumers cannot sue under federal law, although that hasn't stopped many of them from trying. But it makes sense to step back and think about how the incentives and resources influence who (as between individuals and ISPs) is really better suited to combat the problem. It makes sense to consider what an individual is capable of achieving as compared to companies such as Microsoft, Earthlink, and AOL, who have been suing spammers even before the CAN-SPAM Act. The interests of these ISPs and of individual consumers are more or less aligned with respect to stopping spam, but ISPs have fairly sophisticated investigative programs in place and can probably be counted on to be somewhat more rational about the process. The driving force in the selection of a defendant by many individual consumer plaintiffs is whether the entity is solvent and located in the US. Most non-ISP types are not sophisticated and lack the resources necessary to prosecute international spam rings. As a result of these and many other factors, individual enforcement could tend to skew away from taking action against individuals who truly cause the problem.
So it might make sense that Congress decided not to empower individual consumers to sue in court to stop spam. Consider a statement in the article by AOL:
'AOL has struggled for years to
go after bad actors ... (but they're) in other countries or offshore
and difficult to get at,' said AOL lobbyist Cliff Berg. 'You run the
risk of overreaching.'
In contrast to this, Balsam's position that a bunch of individual consumers are well suited to fight the scourge of spam seems rather naive. Indeed, the article notes that Balsam decided to become a lawyer to "clean up the internet." I'm not really sure what to say to that.
This bill is to attack spammers bypassing spam filters. Misspelling is a common technique used, ie. "re:Your v1agra orrder.:
Your partial cite of "deliberately misspelling" to read as "misspelling" is really deceptive.
Empowering individuals does deter. Take a look at the TCPA. Junk faxes went from many a day to maybe a few a month. It is not that there are millions of lawsuit a month that is the discouragement, but the risk of being sued vs. the profit resulting from it. Are there many people breaking into the vending machines in the police station?
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Yo Dawg! Email me let's catch up...
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*I* didn't write the SF Gate article. I merely mentioned my website. Surely you aren't accusing a reporter for the San Francisco Chronicle of not doing her job.
Deliberate misspellings (e.g., "p/e/n/1/s") is a facially deceptive practice intended to deceive spam filters. There is no first amendment right to false & deceptive commercial speech.
It is a travesty that the federal CAN-SPAM Act acknowledges injuries from spam, but yet legitimizes "truthful" spam and removes a private right of action. Contrast to the federal junk-fax law, which expressly DOES let recipients sue. ISPs, AGs, and the FTC can only do so much. If you really want to take down the spammers, you empower the little guy (i.e., the individual recipient) to bring his/her own lawsuit upon being damaged. Congress didn't empower the individual to bring legal action because Congress was heavily lobbied by the Direct Marketing Association and other business lobbyists, who learned their lesson after the junk-fax law.
Sure, some spammers/advertisers are offshore. But lots of them are right here in the U.S.
Finally, I'll point out that CAN-SPAM *only* lets the states regulate false & deceptive advertising. Which is what AB 2950 does. It's a pretty tough position, standing up in favor of falsity & deception.
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