As e-mail marketers prepare clients for the worst and continue self-regulation efforts, they're marshalling their forces to lobby Congress to sign one of two bills that will supersede California's tough new anti-spam law -- and leave the door open for third-party commercial e-mails.

The legislation spurring marketers to action is California's SB 186, which was signed into law at the end of September and goes into effect on January 1, 2004. The law totally bars the sending of unsolicited commercial e-mail to and from the state, and it allows individuals to sue not only someone who sends an unsolicited commercial e-mail, but also the advertiser on whose behalf it was sent. So, an over-enthusiastic or ethically-challenged affiliate marketer who harvested e-mail addresses off the Web and used them to send marketing messages touting an online retailer's specials could put that retailer in the way of a lawsuit. It defines unsolicited commercial e-mail as any commercial e-mail that a recipient hasn't given "direct consent" to receive from an advertiser.

That last provision seems to preclude common customer acquisition marketing practices, including affiliate marketing and the renting of opt-in e-mail lists to third parties.

But e-mail marketers see customer acquisition as a vital part of their businesses. Michael Mayor, president and COO of list management firm NetCreations, says the California law's author, Senator Kevin Murray, didn't intend to preclude this type of marketing.

"The legislator had customers in mind, not customer acquisition," Mayor said, "which is a huge piece of direct marketing." Mayor said he had talked with Murray and, "Clearly, banning third-party commercial e-mail or newsletters was not his intention. We're trying to figure out a way to correct things."

Preparing for the Worst

NetCreations builds double opt-in e-mail lists on behalf of list owners, including Jupitermedia, the parent of this publication. Mayor says that, with SB 186 in effect, his entire business would be illegal if it were based in California. As it is, because consumers on his company's lists have not opted in to receive e-mail from specific advertisers (having only agreed to receive e-mail from "sponsors" or "partners"), his company has begun to cull any e-mail address that can be tied to a California resident, as well as any that have unknown states of origin. That's the only way Mayor sees of protecting his company and its clients, as things now stand.

Industry Self-Regulation

As Mayor talks to legislators and prepares clients for the law coming into effect, three interactive marketing associations -- the Interactive Advertising Bureau, NAI's E-mail Service Provider Coalition and TrustE -- have continued work on industry self-regulation. They've created an anti-spam pledge that they're asking direct marketers to sign. The pledge contains the group's own definition of spam, stepping in where the Direct Marketing Association's (DMA) Association for Interactive Marketers (AIM) declined to tread in releasing its e-mail marketing best practices. According to the associations, unsolicited commercial e-mail, or spam, is defined as "commercial e-mail sent without an existing business relationship or prior informed consent."

The associations' pledge states that:

  • Commercial e-mail must not be sent to an individual's e-mail address unless there is an existing business relationship between the sender and the addressee or the sender has obtained prior informed consent from the individual.
  • Every commercial e-mail must include an opportunity for the recipient to unsubscribe from receiving such e-mail in the future.
  • Commercial e-mail must not include address fields, subject lines and message bodies that are misleading, false, or deceptive.
  • E-mail addresses must not be gathered through surreptitious methods.

The main difference between California's definition of spam and that of the associations is that the sender must have obtained "informed consent," rather than "direct consent".

Counting on Federal Legislation

While preparation and industry self-regulation are important, e-mail marketers are truly hoping for federal legislation to save the day. Trevor Hughes, executive director of ESPC, said that having a uniform definition of spam and regulations at the federal level is critical for the interactive marketing industry. The ESPC, IAB and NAI are lobbying Congress to quickly pass one of two anti-spam bills that are less restrictive than California's and that would preempt the state anti-spam laws now on the books.

"We currently have 37 states with spam legislation, none of which are consistent," Hughes said. "That creates a cacophony of state legislation that needs to be harmonized." He said that state attorneys general that try to prosecute spammers are flummoxed by contradictory rules in other states. "E-mail does not recognize or understand state borders," Hughes said. "We need the broadest, most consistent level of enforcement possible, so that an attorney general or U.S. prosecutor can bring a case in Florida against someone who is spamming from Mississippi."

NetCreations' Mayor has started a letter-writing campaign, asking the owners of the lists his company manages to fax federal legislators and press for passage of three of the eight bills under consideration, H.R. 2214, the Reduction in the Distribution of Spam Act, S. 1293, the Hatch/Leahy bill, or S. 877, the Burns/Wyden bill.

Hughes said his organizational coalition is also lobbying for passage of these bills: "We continue to work on particular issues, but we're hopeful that one of bills will see a presidential signature before the end of the year."

These e-mail marketers hope that this time, legislators will listen as they explain the nuances of the e-mail marketing business, rather than trying to appease consumers by legislating with broad strokes. "This is what happens when you have good intentions, but you don't take time to learn about the business before you enact a law," Mayor said. "Had there been some discussion up-front about the direct marketing business, I'm sure this could have been avoided."