Bad Texas Spam Bill: Ball is in Their Court

EFF-Austin has decided, at my urging, to add this bill to the list of policy issues it is addressing in this legislative session. This will be very helpful. Until now, I've had to appear in front of the Senators claiming to represent only myself. They can count how many votes that represents on one hand, and treat you accordingly. Although EFF-Austin is not a known (let alone regarded) presence at the capitol, at least I can now claim a constituency behind this.

More good news: members from the Texas ISP Association have been weighing in against this bill. This is helpful because it demonstrates this is bad for business, as well as consumers.

The bill currently is pending in the Senate Business and Commerce Committee. They met yesterday, but took no action on the bill. That's good. Dewey Coffman and I showed up anyway to testify against the bill. That may have been a little paranoid of us, but the paranoia is justified. Earlier this week, another bad bill EFF-Austin is following got snuck out of committee behind our back.

The committee will next meet on Tuesday, May 13. Between now and then, it would be immensely helpful if people let the Senators know about the problems with this bill. The most important people to notify would be the sponsor, Sen. Robert Duncan (R-Lubbock) as well as the committee members. With a little luck (and a few faxes) we may be able to turn this around into something that may actually help the spam problem, rather than make it worse.

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re: Bad Texas Spam Bill: Ball is in Their Court

None of what follows should be construed as legal advice. It's all opinion.

I have looked at both the fed and state bill as well as the state bill's legislative history. The key difference to me is that the state bill is written with the intent of legislators to be as broad as possible concerning the element of mens rea, that is, the state of mind necessary in order to form the guilt sufficient for punishment. The bill is imprecise and apt for broad construction, which would place a significant amount of discretion in texas judges. And it seems that the legislators would have been wise to just copy the fed bill because it seems to me that better written and better categorized.

The state bill is under the biz and commerce code, and is actionable under the texas deceptive trade practices act, a tie-in statute provinding enhanced remedies. The DTPA is a very broad and long laundry list of civil wrongdoings for which the statute provides numerous causes of action, and it would seem to cover spam with the exception of porn spam. The DTPA only requires one to be a consumer, not a customer, therefor qualifying as a tort claimant would not be a problem, however, showing harm by a particular spammer would.

I do not understand what your angle is on the statute. Besides a clarification that the statue should be applied only to a sender who intentionally (as the legislative history expressly states) or knowingly sends spam as opposed to someone who sent electronic mail with conscious disregard that it was spam or one who negligently sent spam, I do not see how an increase in labled spam would bother the average consumer. If all spam was labled with a particular acronym or word series, it seems to me that current and even unsophisticated blocker technology would effectively catch the vast majority of these emails.