California's law, scheduled to go into effect on Jan. 1, will likely face a host of legal challenges from direct marketers. Delays are all but certain. But it establishes a national model with sharp teeth. It targets not only spammers but also the advertisers they represent. It lets consumers sue. And it threatens to bludgeon spam violators with fines of up to $1,000 per unwanted mail originating in the state or landing in a California in-box. For a spammer who sends 50 million messages a day, that's lots of potential California liability, since the Golden State accounts for as much as one-fifth of U.S. e-mail.
But here's the rub: The most egregious mail comes from some 200 spammers who are notoriously hard to locate. They reroute their traffic on an hourly basis, often bouncing it off servers in Korea, China, or Russia. And many businesses they represent are scam artists, equally elusive, or fly-by-night snake-oil merchants who can work from post-office boxes offshore.
And spam-weary citizens can expect a continued flow from bulk mailers who operate openly. These extend from catalog companies and e-tailers to the vast direct-marketing industry. These mailers stay legal, by California standards, by following an opt-in policy. That is, folks who check a box to let Amazon.com (AMZN
) Inc. send mail can expect to receive it. Fair enough.
The problem is that opt-in permissions can be bought and sold. This greatly adds to the potential for unwanted mail. Many Web surfers click on a sweepstakes or software offer without reading the fine print. With that, they often unwittingly opt in to future e-mails -- not just from the one salesman but from everyone who buys or rents his list. "I can give you the [computer] address and service that everyone on my mailing lists signed up for," says Annie Coryat, president of Gracie Media, a Lighthouse Point (Fla.) company that sends out 20 million e-mail ads a day.
California's law could lead to a flood of lawsuits against direct marketers, rocking their industry. The focus there will be on opt-in lists, and whether they're legit. Meanwhile, look for criminal spammers -- the ones who don't trouble themselves with opt-in -- to keep spewing their e-trash. There's no end in sight to spam. By Stephen Baker in New York