The California anti-spam law has made e-mail marketers frantic. Others are banking on the fact that a federal spam bill will pass before the state law, SB 186, goes into effect Jan. 1, 2004.

But at press time, the passage of a federal bill was by no means a sure thing, according to legislative experts.

Rumors abound on Capitol Hill that a Senate measure, Can-Spam, which passed the Senate 97-0 in October, will be introduced for a vote before the House of Representatives. Meanwhile, two House bills (one by Rep. Heather Wilson, R-NM) and one by Rep. Richard Burr (R-NC) are being worked on, and a compromise is not out of the question.

All three bills contain language that would pre-empt all state and local laws on commercial e-mail solicitations, said Jim Conway, vice president of government affairs for the Direct Marketing Association. But one of them would have to pass, with that language intact, and become law before Jan. 1.

Whatever passes, opt-in issues brought up by the California law are bigger than spam.

SB 186 makes it illegal for a marketer to send e-mail to people in the state without their permission.

Other states could follow suit.

“California has set the model for other states to follow,” Conway said.

Worse, legislative trends point to the fact that consumers will increasingly demand that direct marketers get their permission before sending all kinds of direct response advertising — including mail.

“One of the issues that's been discussed at the state level in relation to [laws such as] HIPPA, Gramm-Leach-Bliley and spam laws is what exactly is permission in relation to the law?” said Emily Hackett, state policy director of the Direct Marketing Association's Internet Alliance. “Questions surrounding permission-based e-mail and permission-based advertising in general cannot be resolved by one piece of legislation at the state or federal level.”

With so much up in the air, e-mail marketers need to comply with the California law, experts say.

The most important action to take? “Go out and get permission to send e-mail,” said Jerry Cerasale, DMA senior vice president for government affairs.

Marketers must, of course, opt in customers and subscribers. But even advertisers who place ads in e-mail newsletters have to opt in the e-newsletter subscribers to receive their ads, Hackett said.

And if that's not bad enough, the lawmaker who sponsored SB 186, state Sen. Kevin Murray (D-Culver City), admits he didn't mean for the law to say that.

Since the bill became law, Murray wrote to Gov. Gray Davis about the advertiser clause. The letter, dated Sept. 22, said, “SB 186 was not intended to prevent the sending of newsletters whose intent is not to advertise the commercial sale of third-party products, but whose clear primary intention is to disseminate important information to members of a limited particular class of professionals.”

Hackett said that this particular misunderstanding can be set right through legal challenges or an amendment after the first of the year. That is, if a federal law doesn't occur.

And there's another wrinkle.

Everyone who has anything to do with sending out an unsolicited e-mail is liable under the California law, Hackett said. That includes the list broker who rented the e-mail list a mailer transmitted a marketing message to, she added.

“This is a law you can't comply with,” Hackett said.

There will surely be immediate legal challenges to the law, experts noted.

Meanwhile, the Direct Marketing Association intends to sue to halt the Murray law. “There's a likelihood there will be a suit [and] the DMA probably won't be a lead plaintiff,” Cerasale said at press time.

Meanwhile, advises Brian Huseman, attorney with the Federal Trade Commission, which prosecutes spammers, “You should be using confirmed opt-in as a general rule.”

Other tips from Hackett:

• Talk to your lawyer and analyze how the bill affects your company.

• Remove California addresses from your e-mail files or obtain direct consent from those consumers.

• Make sure your affiliates and third-party marketers are not sending e-mail to Californians under your name.

• If you receive a notice from an Internet service provider or an e-mail service provider that you've violated their terms of service, resolve that problem.

• Do not send e-mail newsletters that contain ads unless you get consent from recipients to send them the ads, or unless you have a prior business relationship as defined under the law.