Bill targeting junk e-mail awaits California governor’s signature

Tuesday, September 8, 1998

Gov. Pete Wilson could make California a “spam-free zone” if he allows a bill that would regulate junk e-mail to become law, says the author of the legislation.

The bill, first introduced in January and passed by the state Legislature recently, was designed to give California-based Internet service providers a remedy to combat the problems caused by unsolicited commercial e-mail.

Assembly Bill 1629, provides that “no registered user” or “individual, corporation or other entity” shall use an Internet service provider's electronic mail services in violation of the ISP's policy regarding junk e-mail.

The bill would also grant California ISP's the right to sue those companies that send spam, allowing them to seek up to $50 for each unsolicited commercial e-mail up to a maximum of $25,000.

Assemblyman Gary Miller, who authored the bill, called the Legislature's passage of the bill “a great day for Internet users in California.”

The Senate passed the bill Aug. 26 and the Assembly followed suit the next day. The bill now awaits the signature of Gov. Pete Wilson. If he fails to take action by Sept. 30, the bill will become law.

“Unsolicited commercial advertisements, otherwise known as spam, are like collect calls that you cannot refuse,” Miller said. “AB 1629 is the first bill ever proposed or passed which would allow Internet Service Providers to protect themselves and their consumers.”

One First Amendment expert says that although the bill appears to be consistent with a couple of recent federal court decisions, it still raises some free-speech concerns.

Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, said: “This legislation is limited to civil sanctions and appears consistent with what two federal district court judges found in vindicating the interests of AOL and Compuserve. The legislation essentially codifies what these two federal judges said that an ISP has a property interest in its network which it may protect from spammers.”

In one of the cases O'Neil refers to — CompuServe, Inc. v. Cyber Promotions, Inc. — a federal judge in Ohio ruled that Compuserve had a viable claim of trespass to personal property against a company that spammed its subscribers.

CompuServe had argued that it had a First Amendment right to disseminate its commercial speech. However, the judge wrote that “if defendants were to prevail on their First Amendment arguments, the viability of electronic mail as an effective means of communication for the rest of society would be put at risk.”

O'Neil said the California legislation raises an interesting free-speech question: “When an ISP acting as an extra powerful gateway seeks redress from the courts to vindicate its interests, does this create a First Amendment issue?

“If an ISP cancels a subscriber's account because that individual violated a contractual arrangement not to spam, there's no First Amendment issue,” he said. “But if that ISP goes to court and gets a judge to intervene against someone's expressive activity, i.e. sending commercial e-mail messages, I think that raises a First Amendment issue.”

California is one of many states that has considered regulating spam. Both Nevada and Washington have already passed such legislation. Several measures regulating junk e-mail are currently before Congress.

“We passed a sound law to protect California, but there is still work to be done on the national level,” Miller said. “Spam is not just hurting Californians; it is hurting the whole Internet system. We need to take the next step and create a national solution.”